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Chapter 1: What is the main topic discussed in this episode?
This is Fresh Air. I'm Tanya Mosley. President Donald Trump's campaign against his political enemies is intensifying.
Chapter 2: What is the main topic of President Trump's campaign against his political enemies?
This week, the Justice Department ordered federal prosecutors in at least seven states to draft plans to investigate billionaire George Soros' Open Society Foundations on potential charges ranging from racketeering to support for terrorism. The foundation's president, Bneifer Nwoji, responded in her first interview since becoming a target by saying, This is not about George Soros, she told NPR.
This is about the United States slowly losing its democracy bit by bit in ways that we've seen elsewhere in the world. The DOJ directive follows last week's indictment of former FBI Director James Comey on charges of making false statements and obstruction related to his 2020 congressional testimony about the Russia investigation.
Despite career prosecutors arguing that there wasn't enough evidence, the president pushed for prosecution.
Chapter 3: What actions has the DOJ taken against George Soros' Open Society Foundations?
And when U.S. Attorney Eric Siebert refused, the president fired him and installed one of his personal lawyers, Lindsey Halligan, who quickly secured an indictment. Here's President Trump last Friday answering a reporter who asked him, now that James Comey has been indicted, who is the next person on your list?
not a list, but I think there'll be others. I mean, they're corrupt. These were corrupt, radical left Democrats. Because Comey essentially was worse than a Democrat. I would say the Democrats are better than Comey. But there'll be others. Look, that's my opinion. They weaponized The Justice Department, like nobody in history, what they've done is terrible.
And so I hope, frankly, I hope there are others, because you can't let this happen to a country.
The president is also pushing for charges against Senator Adam Schiff and New York Attorney General Letitia James. Legal scholars warn this represents a fundamental break from decades of precedent meant to insulate the Justice Department from political interference. Inside the Justice Department, attorneys are resigning in protest. My guest today is legal scholar Barbara McQuaid.
In 2017, she was among the U.S. attorneys forced to resign under the Trump administration. Today, she's a professor at the University of Michigan Law School and author of Attack from Within, How Disinformation is Sabotaging America, and the forthcoming book, The Fix, Saving America from the Corruption of Mob-Style Government. Barbara McQuaid. Welcome to Fresh Air. Thanks very much, Tanya.
Glad to be here with you. Barbara, I want to play something from this past Friday on Fox News. It's from U.S. Attorney General Pam Bondi. She was on Sean Hannity's show. And in this exchange that I'm about to play, she lays out who could be targeted for investigation under this administration. Let's listen.
Whether you're a former FBI director, whether you're a former head of an Intel community, whether you are a current state or local elected official, whether you're a billionaire funding organizations to try to keep Donald Trump out of office, everything is on the table. We will investigate you and we will end the weaponization. No longer will there be a two tier system of justice.
And we are working hand in hand, Director Patel and I, Todd Blanch, with our incredible intel community, Tulsi Gabbard, John Radcliffe, going nonstop around the clock.
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Chapter 4: How does the indictment of James Comey reflect on the rule of law?
People will be held accountable.
That was U.S. Attorney General Pam Bondi talking to Sean Hannity. And as we heard her say, everything is on the table. She framed it as ending weaponization. But Barbara, what she's describing is the Justice Department being used to go after political enemies. I'll start there by asking you as a legal scholar, what is your reaction to her statements?
It is so profoundly wrong and it makes me not only upset and angry, but very sad. I spent almost 20 years of my life working for the Department of Justice during a time when it was the North Star that you do not use federal prosecution to go after political rivals. There is a provision in the
the Justice Department manual that says prosecutors may never consider partisan politics, political association, political party, political office, in making a charging decision. And it seems that Pam Bondi is turning that on its head. Now, it's a norm. It's not a law. But since Watergate, it has been – crystal clear that that is the way that prosecutors conduct themselves.
And so to see it used as a weapon in response to false claims of weaponization is deeply disturbing, not only because of my devotion of my career there, but what it could do to Americans who might disagree with this president.
I want to ask you about some of the things that the Trump administration is alleging, not only with Comey and with other folks that he perceives as his political enemies, but also the Searles foundations. I want to give some backstory here. The New York Times reports that the Justice Department. instructed prosecutors to build cases against the foundations.
This organization, just to give some backstory here, has spent the last few decades funding democracy work worldwide. It's also been the subject of conspiracy theories. There are theories claiming that Soros orchestrated events like Charlottesville and secretly funds Black Lives Matter. What exactly does it mean when the DOJ orders multiple U.S. attorneys' offices to
to draw up investigative plans targeting someone? And specifically, what potential charges are being discussed? And what does this moment actually mean for the rule of law?
This is such a bastardization of the rule of law. You know, there's a famous speech that Robert Jackson gave in the Great Hall of the Department of Justice in 1940. He at the time was the Attorney General of the United States. He, of course, would go on to become a Supreme Court justice and chief prosecutor at the Nuremberg trials.
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Chapter 5: What are the implications of the DOJ being used to target political rivals?
Because then they would be the leak in a newspaper report that their rival was under investigation because that's all they really wanted was the specter of an investigation. And that concept is so consistent with some of the things we've seen from Donald Trump
Remember when he had the exchange with Vladimir Zelensky back in the subject of the first impeachment, where he said, all I want you to do is go on CNN and announce that the Biden family is under investigation. And then remember when the 2020 election, he was claiming fraud and he asked his Justice Department, just say there was fraud and leave the rest to me and Republicans in Congress.
What it seems to me he really wants is let's just announce this thing because that will dirty them up. In some ways, it feels like that's what's happening to Jim Comey right now.
Let's talk a little bit about the James Comey case. The president has referred to him as a bad guy. You just wrote an analysis of the indictment. You called it amateur hour in the Eastern District of Virginia. Walk us through what you saw in that indictment that make you describe it that way.
Well, you know, it would be laughable if it weren't so dangerous. But I do think that there are a number of things that are red flags. I mean, first, the process of it all. Right. We've got a Trump appointed interim U.S. attorney nominated for the permanent position, 15 year career prosecutor who, by all accounts, is a solid award winning public servant declines.
The prosecution says, no, there's just no evidence here. He gets fired and replaced with a White House loyalist, Lindsay Halligan, an insurance lawyer, someone who's represented Donald Trump in the past, working as an aide at the White House, whose job it is at the moment to scrub the Smithsonian from woke ideology. That's the person he installs as the new U.S. attorney.
And within four days, despite a memo from the line prosecutors arguing that there's no probable cause in this case, she says, I'll charge that case.
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Chapter 6: How does Barbara McQuade view the weaponization of the Justice Department?
But it is not some line prosecutor in the office who goes in and does the work, as is often the case, almost always the case, to present the case to the grand jury, to sign off on the indictment. She and she alone is the one who goes into the grand jury room and she and she alone is the one who signs the indictment. During the eight years I served as a U.S.
attorney, do you know how many indictments I signed? Zero.
Chapter 7: What norms were established post-Watergate to protect the DOJ from political interference?
That's because there are line prosecutors steeped in the details of those cases who are the ones who present the case and sign the indictment. It is very telling to me that instead we had Lindsay Halligan doing all of this work.
You write about something that's a little bit confusing in the heart of this indictment. So Senator Ted Cruz asked Comey about testimony in 2017. But Cruz apparently misspoke and he said Clinton administration when he meant Clinton investigation, mixing up questioning about Hillary Clinton's email server. not the former president, Bill Clinton's administration.
Barbara, can you untangle this for us? Yeah, I'll try.
So Cruz was asking Comey about testimony he gave in 2017 In response to a question from Senator Chuck Grassley. And so when Grassley asked the question, he asked if Comey had ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation.
Now, it's a little unclear what was being discussed when he talked about Clinton investigation. Was that the email server or was that the Clinton Foundation? So that alone makes it tricky. But Cruz botches it in 2020 because he doesn't say Clinton investigation. He says Clinton administration.
My guess is it is this tangle that is causing other prosecutors to say this case is a mess and can't be charged.
Let's play a little bit of that testimony.
On May 3rd, 2017, in this committee, Chairman Grassley asked you point blank, quote, have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation? You responded under oath, quote, never. He then asked you, quote, have you ever authorized someone else at the FBI to be an anonymous source
in news reports about the Trump investigation or the Clinton administration. You responded again under oath, no. Now, as you know, Mr. McCabe, who works for you, has publicly and repeatedly stated that he leaked information to the Wall Street Journal and that you were directly aware of it and that you directly authorized it.
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Chapter 8: What are the potential consequences for state officials challenging the president?
Cruz misspeaks.
And I think as a result, it really clutters a case where a jury is going to be asked to find unanimously guilt beyond a reasonable doubt. So the other flaw with this case is, as you said, Cruz is going back to 2017 and asking about a question that was asked by Senator Chuck Grassley at that time.
And the reason I imagine they use the 2020 restatement as opposed to the 2017 statement is because the statute of limitations is only five years. And so it's too late to charge for the 2017 thing. So instead, you're stuck with what Ted Cruz says.
You feel like this case is probably destined for acquittal, but you also write that the indictment itself has a variance problem. And can you explain what that means and why Comey might actually prefer to let this go to trial than get it dismissed early?
Yeah, it's an interesting concept. So a variance is a legal term of art, and that is you charge one crime, but you proved another. And that is fatal to an indictment. So, for example, say I charged you, Tanya, with robbing a bank, the First Bank of America, on July 1st. But at trial, the evidence I prove is that you robbed the Second Bank of America on August 1st.
I may have proved out a crime, but it's not that crime. And that would be a variance from the indictment in violation of your due process rights, because a defendant is entitled to fair notice of that with which he is charged so that he can mount a defense and share an alibi if he can say I was somewhere else on August 1st of this year.
And so for that reason, a false statement pertaining to the Clinton administration is different from a false statement pertaining to the Clinton investigation. That's about the email server, not about the Clinton administration. And in addition, there is some argument that it isn't about either of those things, but it's about the Clinton Foundation. And that was what they were investigating. So
They have to have a solid theory of prosecution. They have to provide Jim Comey with notice of that. To date, they haven't really done that. But as you say, maybe Comey just wants to strategically say, let's have a trial. I'm ready. I want to assert my right to a speedy trial. I have a right to a trial within 70 days.
And that sometimes can trip up prosecutors because they don't have anybody ready to go within 70 days. In this case, that might be a very good strategy, because if the only one at the Eastern District of Virginia's office who's willing to take this case is Lindsay Halligan, she does not seem ready for prime time with the skills required and experience required to handle a federal criminal case.
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