← Stay Tuned with Preet
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- [00:00]
Preet Bharara
From Cafe and the Vox Media Podcast Network. Welcome to Stay Tuned. I'm Preet Bharara.
- [00:08]
Barb McQuaid
It's easy perhaps to chuckle at a Donald Trump. There are times when he's sort of campy. I think there are things that he does, you know, his little dance and some of the other kinds of things to come across as a rascal. But I think we have to look under those things at the real harm he has done to American institutions and the rule of.
- [00:34]
Preet Bharara
That's Barb McQuaid. She's the former U.S. attorney for the Eastern District of Michigan, a law professor and Ms. Now legal analyst. She's also a co host of the podcast Sisters in Law, and she's now out with a new book, the Saving America from the Corruption of a Mob Style Government. This is a live recording of our conversation from the 92nd Street Y in New York City. That's coming up. Stay tuned.
- [01:08]
Barb McQuaid
Cheating on your partner is a huge breach of trust. All of the pain and the guilt and the reality of what was happening hit me just like a tidal wave all at once. Why do people cheat? And why does it make us so mad, even when we are not the ones it's happening to? That's this week on Explain It TO Me. New episodes Sundays, wherever you get your podcasts.
- [01:37]
Megan Rapinoe
Megan Rapinoe, Here this week is our last regular episode of A Touch More. Before I kick off a limited series, A Touch More the Beautiful Game, a special series for the World cup featuring in depth interviews with some of soccer's biggest stars. But for this week, we are closing out the era with a special compilation episode featuring our absolute favorite moments and themes from our last 90 episodes of a Touch More. Check out the latest episode of A Touch More wherever you get your podcasts and on YouTube.
- [02:11]
Preet Bharara
What can prosecuting organized crime teach us about holding President Trump accountable?
- [02:22]
Without any further ado, barb mcquaid, Let me start with tough question. Given the news, given the allegations that have been made about our president again and again and again, given the events of Friday evening, and given the sort of framework that you've adopted in the book about mob style government, Godfather 1 or Godfather 2?
- [02:57]
Barb McQuaid
Well, I know that you Preet are a big fan of the Godfather movies. And in fact, before writing this book, I rewatched all three movies. And you'll be pleased to know that I do quote from Godfather 1 At one point, which is the scene at the opening of the very first Godfather, where Marlon Brando Don Corleone says to the man who comes to him for a favor you know, what do I owe you? And he just says, someday, and that
- [03:28]
Preet Bharara
day may never come, I'll call upon
- [03:30]
you to do a service for me.
- [03:32]
Barb McQuaid
And I think that is the essence of what we see in President Trump. We see both the offering of favors in exchange for owing him some sort of patronage, and we see the squeeze of inflicting pain so that you will come to the table to coerce you into negotiating your own punishment. Certainly, we've seen it with law firms, we've seen it with universities, the media, when tariffs were still lawful, foreign allies. The tactics are very similar to what we see in mob and Mafia cases. I know you prosecuted some of these cases, and instead of statesmanship, we have these mob tactics used to dominate and to amass even more power.
- [04:24]
Preet Bharara
Let me ask you this question. The use of tough tactics is not new. For example, President Johnson, tough guy, there are famous pictures of him holding his political adversaries and sometimes his political allies by the lapels. What makes the extortionate or threatening conduct of this president different from what we've seen before?
- [04:55]
Barb McQuaid
So certainly political hardball has its place in our political system. You know, you give me a favor, I'll give you one. If you don't vote my way. There may be political repercussions, but I think what we're seeing that's different in this administration is the president using levers of the executive branch to threaten or harm his rivals. For example, the way he's been using the Justice Department to go after his rivals, real and perceived, with investigations or even criminal charges against people like Jim Comey and Letitia James. We saw him, the Justice Department, attempt to charge six members of Congress simply for speaking out and accurately explaining the law which allows service members to refuse to obey an illegal order. I think that use of those coercive tactics, not just political repercussions, but legal repercussions, I think is what makes this administration so different from the ones we've seen in the past.
- [06:03]
Preet Bharara
When was it that you, as a former prosecutor generally, and also a mob prosecutor specifically, when did you realize that what you were seeing resembled a mob situation? Was it when you realized that his first name is Don?
- [06:21]
Barb McQuaid
That is a good coincidence. I think it was early in his second term. And, you know, you used to be the U.S. attorney in Manhattan, Southern District of New York. When we saw the dismissal of the Eric Adams case, I think that was the first hint that this administration, this second Trump administration, was going to be very different from the first. You know, certainly I didn't Love everything that Jeff Sessions or William Barr did. But mostly they were advancing the priorities of that administration, consistent with the rule of law. I had some quibbles with William Barr, with the way he handled Michael Flynn and Roger Stone, but even he resigned rather than go along with false claims that the 2020 election was stolen. But remember, early on In January of 2025, we saw the dismissal of bribery charges against former Mayor Eric Adams, and we saw Danielle Sassoon, the Trump appointed interim U.S. attorney there, resign over what she said is a quid pro quo, that these charges were being dismissed without prejudice so that they could hang over the. The head of Eric Adams in exchange for enforcing President Trump's immigration agenda. And then, remember, Tom Holman, the immigration czar, showed up on a television interview with Eric Adams and even said, if you don't follow through on this, I'm gonna be up in your office. And he used some colorful terms to make sure you comply with this thing. To her credit, Danielle Sassoon resigned and. But I found it incredibly ironic that in a bribery case, they were using this quid pro quo to try to coerce this kind of behavior. So I think that was the first sign that this was going to be a very different administration, that we are seeing these sort of mob style tactics, but then the executive orders against the law firms and universities, frivolous lawsuits against the media, and then the favors to, you know, some of his allies, the dismissal of charges, the pardons of the January 6th defendants. So we are seeing this rewarding of people who serve me. I may ask you for a favor. That day may never come, but someday you will do a favor for me and the punishment of his enemies. And so I think it was those things early on in the second Trump administration that really sparked the inspiration for this book.
- [08:51]
Preet Bharara
You know, there's something else that the mob can do and that you write that Trump does, and that is this idea that you can make the breaking of the law kind of fascinating and, dare I say, even sexy and arrogate to yourself, sort of a certain kind of mythic, charismatic status by having been charged and had allegations made against you, and you beat the rap and you beat the rap and you beat the rap, or you have an ability in the community. You see this in the Godfather and other places of getting your friends out of trouble. With respect to the news from Friday, I'm thinking in particular about the $1.8 billion fund. Do you see mob tactics in that proposal?
- [09:44]
Barb McQuaid
Is that a loaded question?
- [09:45]
Preet Bharara
Let me count the ways.
- [09:46]
Barb McQuaid
Yeah. If we were in court, the judge would sustain an objection to that. As a leading question, one to which you already know the answer. Boy, yeah, that slush fund, even calling it the 1776 Fund. What a bit of gaslighting that is, right? To suggest that this somehow harks back to our nation's founding. This is corrupt on top of corrupt on top of corrupt. First, the idea that President Trump is suing his own Internal Revenue Service and Treasury is itself a fiction. When the judge started asking questions about how is it a court has jurisdiction when there is no adversity between the parties, when our Constitution requires that there be a genuine case or controversy. And just two days before the parties were required to submit a brief on that point, Donald Trump dismissed his case. I think that's because they knew that the case was about to fall apart. There was some amici in that case that the judge had appointed because there was no real adversity in the case to help her work through these issues. And they pointed out accurately that, that the IRS failed to assert the defenses that it routinely asserts in cases. Number one, the statute of limitations. This alleged harm, the leaking of Trump's tax returns, which was wrong. And the person who did that was criminally prosecuted and punished.
- [11:21]
Preet Bharara
And who was the president by President Joe Biden.
- [11:24]
Barb McQuaid
Oh, and instead Trump says, I was harmed by the tune of $10 billion. But that happened in 2019. There's a two year statute of limitations. The lawsuit was filed in 2026, but the IRS was silent about the statute of limitations. It did not assert sovereign immunity to say, yeah, this guy did something wrong, this contractor, but how does that relate to the government agency and tracing the loss, the $10 billion, to say, show us the those damages. So all of those things were inappropriate. And then to settle it, not with Donald Trump for what he may have lost, but to say this third party as yet to be filed, claims by people who have been harmed by alleged weaponization. They're going to get the benefit of this $1.8 billion. And the panel will not be, will not be a judge to oversee any of this, but a panel of people handpicked by Todd Blanche, the Acting Attorney General of the United States and fireable by President Trump himself. So it's a fraud on top of a fraud on top of a fraud.
- [12:32]
Preet Bharara
So what's gonna happen if I can amplify the question? So for laypeople, you think, well, the judge is not a prosecutor, the judge is not an independent counsel, it's not a special counsel. What is the thing that the Court is looking at. And then if we're applying the rules of evidence, as you suggested, we might. This is a compound question I'm telling you in advance. Is it odd that the court used the word collusion? What does that mean in this context?
- [13:05]
Barb McQuaid
Yeah. So collusion is a word we all learned when Robert Mueller started investigating connections between the Trump campaign and Russia. And it's kind of a mushy word. It's. And maybe she chose that deliberately. Right. She didn't want to accuse them of a crime. She didn't want to accuse them of a fraud. But there does seem to be some self dealing going on here.
- [13:25]
Preet Bharara
The word has a lot of baggage in the legal environment, but okay.
- [13:29]
Barb McQuaid
Anyway, I don't know that she's going to be able to do anything about this. From time to time, the Justice Department does settle lawsuits. Most often they do so under the supervision of a court after a lawsuit is filed and the court sort of blesses it. You know, they keep comparing it to this Keeps Eagle case, a case from the Obama era, and say it's just like that case. No, it's not just like that case because that case was administered by a court for individuals who had filed legal claims as part of a class action for discrimination by Native American farmers. And there was a judge overseeing the administration of those funds here. Because the case is dismissed, there is no third party to oversee any of this. It's just going to be this self dealing between Trump and his own Justice Department. But I don't know that once the case is dismissed, I don't know that the court really has jurisdiction to do much about this. She has said she will reopen it. And the standing of the judges is as a Meekie. They are not interveners as parties. They've just said, hey, we're former judges and heads up judge, we think this might be a fraud on the court. I don't know though, that she has got the authority to do much about it, I think. Really?
- [14:45]
Preet Bharara
Do you think the Circuit Court of Appeals will shut her down?
- [14:48]
Barb McQuaid
I don't know, but if it gets ultimately to the Supreme Court, I think they will. Where I think there is an ability to shut this down is number one, a lawsuit by either house of Congress right now with Republicans in control. I don't think that's going to happen after the midterm elections. If there is a different makeup of Congress, they will be within the statute of limitations to file a lawsuit to shut that down. I think that's a possibility. I think the other thing a newly constituted Congress could do is pass legislation that rescinds the funds from the judgment fund to say they cannot be spent on these kinds of claims. Or you can use the Gavin Newsom solution, which we discussed at dinner tonight with some friends, and that is to impose a 100% tax on any recovery by a January 6th defendant.
- [15:39]
Preet Bharara
Is that lawful?
- [15:41]
Barb McQuaid
I think it probably is. To impose a tax, you don't have to identify individuals, but to say taxes will be imposed for certain kinds of activities, I think you could do that.
- [15:53]
Preet Bharara
What I find kind of interesting, it's related to some of the themes in your book, is it's not just about the law. As a lot of things you and I discuss on our podcast and elsewhere that are important, there's an intersection between law and culture. Right. And when we talk about norms, norms are a term that relate to the culture of an institution or even of a nation. Right. And I've been sort of surprised as both a spectator and a person who speaks about these things, like you, at which things piss off even Republicans. Like which things get above the threshold of like, well, that's too much because so much is allowed to go by unresponded to, uncritiqued. And this one, the $1.8 billion fund, seems to have pissed off Republicans enough that a couple of them have found their spines and their vocal cords and have said their piece about it. Do you have a view about whether or not there's something different about this that caused that? Is it because Donald Trump is in his final two or three years, or is it really that this thing itself is so offensive, it's such an affront that even the generally weak minded and mute Republicans had to say something about it.
- [17:16]
Barb McQuaid
Yeah, I don't know and I share your view that it surprises me so often. The president will do something and I'll say, well, surely this is the thing, right? The Epstein files or whatever it is, this is the thing that's going to send people over the top and that'll be the end of it. He'll overreach and that will be the end of it. And I've often been surprised when the response is sort of a shrug or a ho hum and it's business as usual. I think part of that is Trump is such a master at distraction, and so when there is some blowback, he blows up a boat in Venezuela or something and now we're talking about that instead. So distraction is certainly a tactic, but this one, I think probably resonates with members of Congress regardless of party, because it is taking what they do. They dedicate funds to what is called the judgment fund on the theory that the president and his Department of Justice will take care that the laws be faithfully executed, as they are required to do under the Constitution, and pay out funds, taxpayer funds, to resolve claims that are in the best interest of justice and the United States. And this is so far afield from that. We already had the pardons of these January 6th defendants. And now the idea that they're going to get paid for attacking police officers, I think, is just so incredibly offensive. And maybe it's because it relates to their power of the purse that some of them are finally speaking out.
- [18:42]
Preet Bharara
It's even worse than that. Not just pardoned and now on deck to get money, but the people who prosecuted them have been fired, some of them investigated, and they have sought the prosecution of the people who did what you're talking about. So, you know, it's a lot of different things. Let me pick another news item from the last week and see how it relates to the themes of your book. So E. Jean Carroll, we all remember E. Jean Carroll, who had a successful lawsuit of a significant nature in New York against Donald Trump. Surprise, surprise, reports that she is under federal criminal investigation now on Friday. This is more stuff that happened on Friday. Statement by unusual statement BY the sitting U.S. attorney in Chicago in the Northern District of Illinois saying, no, we're not investigating. First of all, discuss how unusual that is, what's happening there, and what's the mob tactic at play in that matter?
- [19:42]
Barb McQuaid
Well, I mean, first, the idea that she's being investigated criminally seems like absolute retaliation. And, you know, remember, so much of what a mob boss does is they punish someone not only to avenge whatever harm that person has done, but to send a message to everybody else, you better not cross me, because this bad thing could happen to you as well. So it's designed to impose a chilling effect on. On other people. The Statement by the U.S. attorney in Chicago I thought was interesting because there was a report in CNN that DOJ was investigating E. Jean Carroll for this alleged false statement during her deposition in 2022. And I don't think anybody said anything about Chicago, and suddenly he issues a statement. But it had so many qualifiers in it that it made me wonder, you know, if any part of the statement is not true, he can say it's categorically false to say, we have opened a criminal investigation on E. Jean Carroll relating to this. And if you have enough qualifiers, you can say it's unequivocally. False. It just made me think, well, it must be true.
- [20:57]
Preet Bharara
So here's another parallel between the mob world and the political world we're seeing, and not just with Trump, but there are others. There are Democrats who have been, I think, in this genre as well, where you have charismatic, entertaining, larger than life personalities. John Gotti comes to mind. You mentioned that parallel in your book. And people admire them, and they put aside the stuff that they're told and the things that the courts have done because, a, they're flamboyant and charismatic. They do things for the community. They don't do, only bad. They do things for the community. You know, every mobster we ever prosecuted in the Southern District, I believe at the time of sentencing, had a big, thick sentencing memorandum that had sincere and genuine letters from various people saying, you know, this man helped me, this man helped my kid, this man helped my school. You know, you and I love mob movies, but then we prosecuted mobsters. Are we to blame a little bit for creating a culture that valorizes and celebrates mobsters, even as we prosecute them in certain precincts? And is that what's happening here?
- [22:08]
Barb McQuaid
I think America has always loved a little bit the outlaw. The movies are full of them. The Sopranos, right? Everybody loves the lovable mobster. The same is true of a lot of other rebels, outlaws. You know, Clint Eastwood movies. He lived according to. To his own code. People like that sort of maverick spirit. But I think that we recognize that they cause serious harm in a society. Right. We are a democracy or a republican democracy where we rely on the will of the people to get things done. And as we move more into this sort of mob leadership mentality, we lose that autonomy for ourselves. It's easy, perhaps to chuckle at a Donald Trump. There are times when he's sort of campy. I think there are things that he does, you know, his little dance and some of the other kinds of things to come across as a rascal. But I think we have to look under those things, at the real harm he has done to American institutions and the rule of law. You know, the rule of law says all of us are equal before the law. We all are required to follow the rules, and if we fail to do so, we should be held equally accountable. And he wants to rise above the law. He wants to lift up his friends and allies above the law, and he wants to use the law to unfairly punish anyone who acts out against him. That is not the rule of law in America. And so, you know, there may be times that we find it laughable and lovable. But I think in the end, it is a dangerous game to treat less than seriously somebody who plays by his own rules.
- [23:52]
Preet Bharara
Yeah, part of the problem is maybe he's your friend today, maybe you're the beneficiary of his largesse today, but tomorrow you may not be and you find yourself in a very, very bad position. So continuing with the parallel, as you well know, and I'm guessing the audience knows the way that you bring down and hold accountable people in organized crime and other organized groups as well, but in particularly organized crime because of the doctrine of omerta. Right. Silence is. To break that pledge is to flip. People get people to flip to cooperate with the government, provide substantial assistance. If we're carrying through the metaphor, does that hold to put a stop to the corruption and abuse of power that we believe is going on? Who in the orbit of the president needs to flip?
- [24:50]
Barb McQuaid
Well, I think we've already seen some of it. I mean, Mike Pence, right, who stood strong on January 6th, and I think he already flipped when he refused to go along with the false claims of a stolen election. William Barr has flipped, but I don't know if we're gonna count on people in his inner circle to flip. I think the answer comes from collective action of the people. I think we have the power ourselves to take back our power to say, it's not good enough, we're not going to go along with it. I think flipping the Congress is an important way to do that. You know, the fix focuses a good bit on, you know, mob tactics, but the bulk of the book is about solutions. And I think one important thing we can do is you mentioned how Article iii, the courts have done a pretty good job in this moment of enforcing the rule of law. The branch that has really failed, I think, is the Article 1 branch, the Congress, you know, supposed to be the one that is most accountable to the people. I think if we can flip the Congress and have, whether they're Democrats or Republicans, people willing to stand up to these violations of the rule of law, that is what will save us. And we the people have the power to elect members of Congress who are willing to look the President in the eye and uphold the rule of law.
- [26:12]
Preet Bharara
Let me go at it another way. The other way that the mob was held accountable and shrunk in its power and in its criminality in New York and presumably in Detroit and elsewhere, was the force for good, was, in fact, not within the mob. There was a separate law enforcement force, generally speaking, the FBI, who through great challenge and hardship and uphill battles, managed dismantle organized crime families one by one. What do you do when the organized crime family, to carry the analogy, is law enforcement controls law enforcement. Who's the body outside that fixes the problem?
- [26:58]
Barb McQuaid
Yeah. So, you know, right now we've got a Justice Department that's run by Todd Blanche, who is a former private lawyer for Donald Trump and certainly very loyal to Donald Trump. We've got Kash Patel leading the FBI, another Trump loyalist. But I think one of the things we're seeing is some accountability coming from state governments in Minnesota. We have seen charges against ICE agents. We are seeing lawsuits being filed around the country. We've seen judges filing lawsuits from around the country. It may be that we will need to wait until the end of this two years for law enforcement to do its job. But I do think accountability is very important. You know, I come from Michigan, where we spend a lot of time recognizing with great pride the work of Gerald Ford, our only president to come from Michigan. But I think one of the mistakes he made was after Watergate, in pardoning Richard Nixon and saying, our long national nightmare is over. We look forward instead of looking back. I think the failure to hold him accountable is one of the things that gave rise to Donald Trump, the idea that the people don't care. They get tired of a scandal and they want to move on. I think accountability was important at Nuremberg to make sure a record is made of all that happened there and to hold accountable people who did things that were contrary to our democracy and the rule of law. So I would like to see some accountability from not just the state government or in local governments, but federal government, though, of course, I think we're going to have to wait for the next administration to do that.
- [28:40]
Preet Bharara
I'll be right back with Barb McQuaid after this.
- [28:48]
You know, we have this 250th coming up, and Trump is very annoyed that Milli Vanilli. Milli Vanilli is like, yeah, that's beneath us. What is the fact of that controversy and Trump's reaction to it, tell you, if anything, about the intersection of culture and popular culture and art and music?
- [29:10]
Barb McQuaid
Oh, I think so. I think one of, you know, many people underestimate President Trump. You know, they say he's ignorant of history and other things, and that all may be true. But I think he is a showman and a salesman, and I think he understands marketing, and he understands the importance of having his name and image everywhere, because you'll see it with Authoritarians in other regimes. I can remember being in law school during the time when, you know, Saddam Hussein and Muammar Gaddafi were prominent in the world. And you'd see people in their countries walking around holding pictures of their face. And I remember one of my law school classmates saying, this is during the era of George H.W. bush. Can you imagine walking down the street with a picture of George Bush's face? Like, how ridiculous would that be? And yet, here we are, where we see President Trump's image on a $250bill and a passport and his name on the Kennedy Center. We see his image in an act that really makes my stomach turn on the Department of Justice. But it is to create this image that he is everywhere, that he is everything, that he is the brand, that he is the country. He wraps himself in the flag. He wears red, white, and blue. I mean, he wants to be synonymous with America. It is not about allegiance to the country, it's about allegiance to him. Brendan Carr of the FCC even wears not a American flag lapel pin, but a lapel pin with the image of Trump's silhouette. Right. I mean, it is this omnipresence. And I think that's why he was so angry about a court removing his name from the Kennedy center, because not only is he, you know, an egomaniac and narcissist, it is part of his strategy to dominate the landscape with his name and image.
- [30:58]
Preet Bharara
You know, last point in this regard. But there are mobsters who have been very successful being less flamboyant, less public, less charismatic. I mean, the famous ones that we talk about, that movies are made about, were the ones who, I think the other leaders in their families, in the competing families, thought they flew a little too close to the sun. So I wonder if you can be authoritarian without having to be as egomaniacal and name hungry as Trump is. Okay, so what are we gonna do about it? And the nice thing about your book, among many nice things, is it's not just six pages at the end saying, and here's what you gotta do. Write your congressman. You have a substantial vision of how we do better. Talk about that.
- [31:49]
Barb McQuaid
Yeah, Well, I guess I would divide them into two general categories. There are things we can do structurally that require guardrails, and some very ambitious things like constitutional amendments. And then there are other things that we can do as individuals. So on the structural things, some of the things are ranked choice, voting things that will help us to weed out some of the kinds of things we see. When you've got a Multi candidate race. Sometimes the extremists can win out because you've got a couple of normies in there who cancel each other out. So that's a way, you know, Lisa Murkowski, the senator from Alaska, was elected through ranked choice voting. Sarah Palin lost a race in Alaska because of ranked choice voting. And so I think it has a normalizing effect that can be useful at the Justice Department. I think we could codify in the Federal Register some of the things you and I operated under, like the principles of federal prosecution, which say partisan politics may not play a role in choosing your targets. Codifying the FBI's Domestic Investigations Operations Guide, which talks about not building a case based on someone's First Amendment protected activities. So I think codifying some of these things can be a very important way to building those guardrails that could turn norms into legal standards. But I also think collective action by us as individuals is something that we can do as well. Just even participating in protests. I know some of you have probably participated in some of these no Kings protests. Those are incredibly effective. There is a researcher, political scientist at Harvard named Erika Chenoweth who says she has studied hundreds of regime changes around the world. And if just 3.5% of the population engages in political protest, you can see regime change and protests do a lot of good. I know sometimes, you know, when I've gone out to these things, people might say, well, all you're doing is preaching to the choir. Maybe it feels good for, you know, those of you who are out there, but is it really causing change? Well, even if it only feels good and preaching to the choir, that alone is good because sometimes the choir needs to hear the sermon too. It's good to know you're not alone out there. But protest does something else. It causes people who may be on the fence or may be aware that things are not so great when they see their friends or they see reputable people participating in protests, it. It gets their attention. I happen to be at a protest at one of the no Kings in October in Gettysburg, Pennsylvania. So I went out to watch, you know, see what the fuss was all about. And I saw a priest, you know, in his collar out protesting. I saw a teacher with students out protesting. And all of that, I think is really galvanizing many people who are just passing by, you know, honked their horns in support. And I think it sends a message that we're not alone.
- [35:01]
Preet Bharara
You.
- [35:01]
Barb McQuaid
Even though that image of the president is lurking out there, there's safety in numbers. Some of that Collective action can really help. There are other things you can do, too. You can join organizations like the League of Women Voters or indivisible chapters who are working to shore up democracy. So there are lots of things we can do as individuals to be part of the solution to take back our democracy.
- [35:24]
Preet Bharara
You mentioned that your view is that, that Ford made a mistake when he pardoned Nixon. And that may be. And that's a debate that will never be resolved. It's like the debate about, in a totally different context, what we did to Japan during World War II. But I've got a shorter term question that I've talked about with some other folks on the podcast, and that is if the Democrats take back the House and, or the Senate, but they need the House for my question to work. Impeachable offenses exist already, like the establishment of the $1.8 billion fund. And do you believe that that's an impeachable offense? And should he be impeached? And as Democrats consider that, should they be thinking about what it does to him politically, given the things that we've been saying about valorizing yourself as someone who's been targeted and it doesn't seem to work very well politically. And that's not the world that you and I come from. But how do you think about that issue?
- [36:31]
Barb McQuaid
Yeah, so you're right that I don't come from a political world. So I don't know that I, you know, I would probably hire a very good political consultant to answer the question. But as a lawyer, I do believe in accountability. As a prosecutor, I believe in accountability. And I've never been so much about punishing and retribution as a theory of punishment. I've been very much about forward looking and thinking about deterrence because what does punishment do for our future? You wrote a very good book called Doing justice. And I have my students, I teach a criminal law class, read your chapter on sentencing, because sentencing is, I think, often thought of as punishment for the past. But taking a forward view of it, it is the view I have of Gerald Ford pardoning Richard Nixon. Here we are decades later bearing the price of that. I think, and I think that if we are to hold, if we were to ignore what Donald Trump has done, to not hold him accountable once, if there is a Democratic House and Senate that could hold him accountable, I think a failure to do so would in some way say, you know, forget about it. It was okay, we're moving on. And I think instead, forget about it, you know, to talk about our monsters
- [37:47]
Preet Bharara
friend of ours, you're a friend of ours. No, I hear what you're saying. The distinction is that what we used to do was actually a criminal process. You had a trial, a judge presides. The witnesses don't also vote on the jury. None of those distinctions you have in an impeachment. An impeachment is a political process. And when we talk about holding accountable, I wonder a little bit more than I used to. And it's not a popular position in some quarters if your likelihood of success on conviction is close to nil. And it will be in fact close to nil if the Democrats don't win back the Senate. And even if they win it back, but just with a couple of vote margin, our justice manual tells us to weigh before bringing a charge, the likelihood of success. And I wonder if House members should be thinking about that. Should we engage in a quixotic effort to do a thing that's just a charge? Impeachment is not the punishment. Impeachment is not a conviction, just the charge. Like we go to the grand jury, are we enlarging Trump more than diminishing him? And I think that's just an open question.
- [39:00]
Barb McQuaid
I think it's a fair question because one of the things he has done, just as Roy Cohn did, his mentor, is use the fact that he escaped accountability as part of his superpower. Right. I mean, Roy Cohn compared himself to Harry Houdini. I can slip out of anything. And so in some ways it feeds the monster and empowers him. So it's a fair question to impeach if you don't think you have the votes to convict.
- [39:24]
Preet Bharara
Thank you, Barb, for your time, for your insight and for your service.
- [39:28]
Barb McQuaid
Thank you, Breet.
- [39:36]
Preet Bharara
My conversation with Barb McQuaid continues for members of the Insider community. In the exclusive bonus content, Barb and I discuss how to restore public faith in the Justice Department and whether RICO is a viable legal tool for holding this administration accountable.
- [39:51]
Barb McQuaid
Todd Blanche is fond of pulling out his little pocket constitution and reading the vesting clause which says the executive power is vested in a president of the United States. What he doesn't read to you is the other part of Article 2 that says the president shall take care that the laws be faithfully executed.
- [40:08]
Preet Bharara
To try out the membership, head to cafe.cominsider. again, that's cafe.cominsider or staytuned.substack.com after the break, I'll answer your questions about President Trump's slush fund, impeachment of acting officials and ICE arrests in immigration courts. Now let's get to your questions. This question comes in an email from Anna, who writes acting Attorney General Todd Blanche just told Congress that Trump will give up on his $1.776 billion fund. Do you think he's backing down because of pressure from Republicans? If that's true, do you think members of his own party will stand up to him more going forward? Well, these are very good and important questions, Anna. I discussed Trump's slush fund with Barb, as you may have just heard. But after we recorded our conversation, as you point out, the acting attorney general told a House committee that the administration is dropping the so called anti weaponization fund. And as I said with Barbara, it's actually not that hard. When Republicans push back on reasons of principle or legality or constitutionality, it forces Trump's hand and makes him withdraw unsound policies. In this case, several Republicans, which is an odd thing and a rare thing in the last number of years, spoke out publicly. Senate Majority Leader himself, John Thune said, I'm not a big fan of the fundamental sitting Senator. Still, Mitch McConnell said it was morally wrong. And my favorite from Senator Thom Tillis, who said it's stupid on stilts. It's also worth noting what made this fund so politically toxic. It wasn't just the price tag. It's that the fund could have benefited January 6th defendants, including people who were convicted after trial of assaulting police officers. And that appears to have been a bridge too far, even for some. But not all, by the way, some Republicans, as far as their public statements go. Either way, Republican pressure, combined with the two court losses I spoke about with Barb, seemed to have gotten to Trump. And that Republican pressure mattered because it's unclear how legal challenges would have fared. The fund emerged from a settlement negotiated by Trump's own administration. And there was no real adversary in court arguing against it. And so with potential legal challenges uncertain and legal process isn't providing the check, the political check envisioned by the founders becomes all the more important. Our system of checks and balances and separation of powers only works to the benefit of the public when people are willing to use them, whether Democrats or Republicans. Courts play a role, sure, but. But Congress does, too. And members of a president's own party have a responsibility and a duty and an obligation as well. Now, as for your question, whether they'll continue to do so remains to be seen. But as I've said before on the podcast, I think some combination of failing trust in Donald Trump, fatigue in Donald Trump, rising costs and inflation, this war that is dragging on. And the sudden liberating of some Republican senators and members of Congress who see that Donald Trump is a lame duck may portend more examples of what we just saw with the slush fund. This question comes in an email from Leslie, who writes, given that Todd Blanche is only an acting Attorney General and not a Senate confirmed ag, would Congress still be able to impeach him if they wanted to? Well, Leslie, thank you for your question. It's a bit of a hypothetical. I don't know that that will happen. I'm not sure what is gained by that necessarily, depending on what the circumstances are. But it's an interesting question as a legal and policy matter. So, as you all know, Todd Blanche is currently serving as acting Attorney General after President Trump fired Attorney General Pam Bondi. Before that, he was what's known as the DAG, or the Deputy Attorney General, DOJ's number two official. And in that position, he was in fact confirmed by the Senate. And right now, as your question points out, he's in the top job on an acting basis only. It remains to be seen whether Trump will nominate him for the permanent role. For now, he's serving under what's called the Federal Vacancies Reform act, which generally allows acting officials to serve for up to 210 days, though that timeline can be extended under certain circumstances. Will Trump nominate Blanche or not? We don't know. Regardless, before I think any controversy arises with respect to his status in the position, he has until at least the end of October as acting ag. Now, if circumstances warranted it and Congress was so inclined, could it impeach someone who's merely acting? So the answer is likely yes, but not certain. Under Article 2, Section 4, the impeachment clause of the Constitution, the language says the the President, vice President, and all civil officers. That's the important phrase. All civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. It doesn't say that the person has to be Senate confirmed. It doesn't say they have to be permanent office holders. It says only, as I read, civil officers, which includes members of the Cabinet, such as the Attorney General. So if Todd Blanche is exercising the powers of the AG of the United States, for example, overseeing federal prosecutions, directing the FBI, setting DOJ policy, etc. Etc. Then he is presumably functioning as one of the most powerful civil officers in the federal government. And so on that score, the argument that he is subject to impeachment becomes quite strong. However, there isn't a lot of history to guide us. The House of Representatives has impeached just 21 federal officials in American history. Most were federal judges, a handful were presidents. Two of those impeachments belonged to Donald Trump, and only two were Cabinet secretaries. Notably, no acting official has ever been impeached. But there's no direct precedent lawyers could reasonably disagree about whether an acting official should be treated differently from a permanent office holder. One obvious and pragmatic reason why we haven't seen this happen before is likely that if someone is acting, the amount of time it would take to go through the formal process of impeachment might take longer than that person would be in office. But in any event, the constitutional argument that is strong is that if someone has been entrusted with the powers of a civil office, they can also be held accountable through the constitutional mechanisms designed to police that office. And there's another common sense point to make here. Also, imagine if Congress couldn't impeach an acting official. So you would have someone in a high position who by definition has evaded the advice and consent function of the Senate and also be immune from impeachment. It's like, hey, you want fries with that? And that, of course, would create a pretty significant and silly loophole in the constitutional system. In any event, an interesting hypothetical constitutional legal question that could apply after some time to many people in the Cabinet as acting positions proliferate. And this last question comes as an email from Mary, who writes, a federal judge in Manhattan recently barred federal agents from making arrests in New York City immigration courts. But earlier, that same judge declined to block the policy. What's the reasoning? What changed? And why did he reach a different conclusion this time? Mary, thanks for the question. So to understand this ruling, you have to start with a basic Are courthouses fair game for immigration arrests? Historically, the answer has been largely no. But that may be a function of norms and what has been considered appropriate, as opposed to black letter law. Plaintiffs, defendants, witnesses, and victims all obviously need to show up for the justice system to work. If people fear that entering a courthouse could get them deported, they may stop coming. So there's a pragmatic consideration here. But those norms changed during the first Trump administration. Starting around 2017, ICE significantly expanded courthouse immigration arrests. The agency argued that courthouses were efficient and safe locations because people had already been identified and had passed through security screening. Now, immigration courts are a little bit different because they are not run by the judicial branch. Even though they're called courts, they're administrative Courts housed within the Department of Justice itself. And so the people appearing there are often asylum seekers, green card holders facing removal, or undocumented immigrants trying to obtain legal status. In other words, immigration courts are the very place where people go to resolve their immigration cases. In 2021, the Biden administration put out a DHS memo that explicitly barred most immigration arrests in immigration courthouses. That was a matter of policy. But last year, when the Trump administration stepped up its immigration enforcement, a new ICE memo rescinded that Biden guidance and directed ICE agents to resume courthouse immigration arrests. But that 2025 memo did not specifically address what I just mentioned, the immigration courts. That brings us to the New York case. Last summer, we saw dramatic scenes of masked ICE agents confronting, detaining, and sometimes dragging people in the hallways of New York City's immigration courts. While protesters demanded that ICE leave. Two nonprofit immigrant advocacy groups filed a lawsuit seeking to stop these ICE arrests in immigration courts. So, to go back to your original question at first, Judge Castell of the Southern District of New York declined to step in. His decision relied on the government's position that it was following ICE policy when making these arrests. But this spring, the Trump administration reversed course. In a surprising letter to the court, the Assistant U.S. attorney notified the judge that the 2025 ICE guidance did not apply to immigration court arrests. After all, the government wrote, quote, we write respectfully and regrettably to correct a material mistaken statement of fact that the government made to the court and plaintiffs, end quote. Therefore, Judge Castell reversed his earlier opinion in his words, both to correct a clear error and prevent a manifest injustice. In any event, litigation over the issue will continue as DOJ continues to defend the lawfulness of the arrests on other grounds. But for now, ICE cannot make arrests at New York City's immigration courts. Well, that's it for this episode of Stay Tuned. Thanks again to my guest, Barb McQuaid.
- [51:19]
If you like what we do, rate
- [51:20]
and review the show on Apple Podcasts or wherever you listen, every positive review helps new listeners find the show. Send me your questions about news, politics and justice. You can reach me on Twitter or Bluesky PreetBarara with the hashtag AskPreet. You can also call and leave me a message at 833-997-7338. That's 83399, Preet.
- [51:45]
Or you can send an email to
- [51:46]
letterscafe.com stay tuned is now on substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes and more. That's staytuned.substack.com Stay Tuned is presented by Cafe in the Vox Media Podcast network. The executive producer is Tamara Sepper. The deputy editor is Celine Rohr. The supervising producer is Jake Kaplan. The lead editorial producer is Jennifer Indig. The associate producer is Claudia Hernandez. The audio and video producer is Nat Weiner. The senior audio producer is Matthew Billy. And the marketing manager is Leanna Greenway. Our music is by Andrew Gost. Special thanks to Tory Paquette and Adam Harris. I'm your host, Preet Bharara. As always, stay tuned.