The Daily Beast Podcast - Ex-Prosecutor Says She Can Prove Trump Committed Two Crimes

Episode Date: February 27, 2022

Barbara McQuade, a former Michigan prosecutor, joins the first unlocked bonus episode of The New Abnormal to explain how Trump’s big lie is a provable crime. Plus, Andy Levy makes his Sunday episode debut, just in time to listen to clips of Josh Mandel sounding stupid and to unpack Texas Gov. Gregg Abbott’s criminalization of trans kids. It’s a move Andy calls “full-on fascist.” Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Molly Zhang Fast, no relationship to Kim Jong-un. I'm a left-wing pundant and a writer at the Atlantic Invo. And I'm Andy Levy, former Fox News and CNN-HLN guy and current cable news conscientious objector. And I'm producer Jesse Cannon, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart, conversations with the wisest and funniest and funniest people in science and media and politics that help make what's happening today clearer. Our world has been turned upside down, and on the new abnormal, we'll talk about the people who got us into this mess and how we'll hopefully get ourselves out of it. Hello, and welcome to our new Sunday show format. Today we have a super interesting interview with Barbara McQuaid, who's, of course, a former United States District Attorney for the Eastern District of Michigan and host of the Sisters in Law podcast, and she's going to break down how to prosecute Donald Trump in an actual way. But first, let's have some fun.

So hey, it's Sunday, which is where you usually never found me. But now we've changed the format. And we're super excited to be joining you like this for a little more fun, hopefully, every Sunday. And we're no longer behind the paywall. So you get, you're stuck with me for three episodes a week. But the upside is you get Molly John Fest for three episodes a week. How are you, Molly? And you get it for furry.

More important. free. For fun and for free. Yes. It's all happening here on our free episode with no paywall. This is a big fucking deal, Molly. This is a big fucking deal. Yeah.

Fuck yeah. So I actually think what's happening in Texas is that Governor Greg Abbott is doing everything he can to out Trump, even Trump, right? Like every kind of craven cruelty is the point measure he has embraced, right? Like he overturned Roe. He made this. insane, very, very restrictive abortion law where basically the abortions in the state have fallen by, you know, precipitously. And now he is targeting trans kids. Yeah. And it's good that you brought

up the abortion thing because what's going on here is they're following the same model. They've passed this law. It does a couple of different things. One, it basically makes it illegal for, I guess, for like teenagers to get gender reassignment surgery. What it's doing is calling a child abuse. If parents let their kids have this surgery, they can be reported by other people for child abuse. And that, of course, is the same model as the Texas abortion legislation, which called on people, you know, citizens to report it. Deputizing. Right. And thanks to the Supreme Court saying, oh, we don't see a problem with that. They've basically taken that model.

What they're going to do is just keep on restricting people's rights, hoping that as long as they base it on a citizens reporting type system, they'll be able to get away with it. This is just one of the most disgusting things I have ever seen. As was the abortion thing, I don't want to belittle that. But they're children, and they're talking about calling it child abuse and telling doctors and teachers that they need to report families who affirm their transgender children's lifestyle. This is just full-on fascist stuff. This is, like, I don't like using this analogy, but it's hard to say how this is much different from people reporting Jews in Germany in the 1930s and 40s.

Well, it's definitely like real dystopian stuff. Yeah, it absolutely is. You've already got people who are at risk for self-harm and stuff like that because of what they're dealing with, figuring out who they are. And then on top of that, you're trying to criminalize them. Like, it really is just the most pure, evil thing that you could possibly do. Oh, yeah. I mean, it's just completely crazy.

And I also think, more importantly, that if, feels like this really has a sense in which he's doing this to get the base excited, right? He's hurting these children to get the base excited. And I think, like, ultimately, it has to be thought of, like, the right is really obsessed with this. Like, they, you know, they want to be as authoritarian and as destructive and as dystopian as they can. And it's really kind of shocking.

If this is just pure politics and it's not even something that he believes, it's even worse. I mean, if you could get any worse than actually believing you're doing a good thing by this, but you just don't care because you think it's going to gain you a couple of points in a, in a poll or, you know, maybe a presidential primary in 2024. And look, we can also talk about what this says about the Republican Party that this is seen as a positive and what it says ain't good. And where it's go, where the Republican Party is going to go for the midterms. Exactly. In the midterms and then 2024. Like, I like to make jokes about things. I can't think of a joke about this. It's just so awful and so disgusting and so shameful. I honestly, I just really feel for these poor kids and their parents, you know, these parents who are trying to help their kids deal with gender dysphoria. We're not talking about surgical stuff. That's not generally where you go with pubescent children. I mean, the idea here is to scare people and say, like, well, this is something where you can't change it and this is final and this is that. And it is a, and it is a, it is a, and any of those things, just like with the book banning.

And just like with the abortion stuff, they're working really hard, gin up the base, and get people hating each other. And I also think, like, ultimately, remember when Trump targeted Asian Americans because of COVID and called it the Kung Flu? Remember that? And then we saw violence towards Asian Americans. And I feel like this is a similar thing, right?

They're targeting these people because it's politically expedient for them. But ultimately, we know where this ends. ends in violence and it's terrible. It's terrible to watch it happening in real time. Absolutely. And it's not like these kids don't suffer from violence to begin with from other people and from, you know, suicidal ideation because they can't get the help and the treatments that they need for this gender dysphoria. And all you're doing is making it harder and you're making it easier for them to be bullied and to be harmed. I mean, it really is. It's the lowest of the low. And I can't think of any other way to express it. Yeah.

Why don't we get into some more light-hearted midterm election hell and visit the great state of Ohio where our friend Josh Mandel held a debate with his one of the potential. It's not my friend. I don't know, Molly. He is not. I mean, he may be a fellow Hebrew, but that's where it ends. Well, Mandel did a debate with a Democrat and he had to do some owning. So I want to play a clip for you guys and see what you think about his debate tactics. I told that story earlier about being at town hall, the bar and restaurant down the street where I told folks that I'm going to debate Morgan Harper.

She's like AOC only smarter. After hearing that answer, I actually think she's like AOC only dumber because the reality is. So it's a good sign when people in the audience go, oh, it's a grown up. That's just what you want. I think he's abused to that by this point in his life after what he's been saying. I mean, I don't think that was like an amazing. moment for him, right? Like, you know, I mean, Trump is a lot of terrible things, but, you know, you don't, he didn't have moments like that, right? Because he sort of was able to get his base excited.

Well, I'm not going to fully agree with that. I think he did have moments like that. It's just that Trump was almost uniquely able to get away with them. He was able to get away with saying of John McCain, heroes who weren't captured or whatever the exact quote was. You know, and he was able to mimic a disabled reporter by making weird body gestures. But he was able to get away with it, unfortunately, but he was. But the problem for people like Josh Mandel is, you know, he may still win, but it won't be because people saw this and liked it. And, you know, it won't be. It's like for Trump, somehow Trump turned it into a feature, which is gross. But, you know, and I'm, I just want to make it crystal clear that I'm not saying this is a good thing. But he was able to do that. This is

one of the problems for Republicans post-Trump or even trying to mimic Trump while he's still a factor. They can't pull it off the way he could. Somehow he could get people to laugh at stuff like that. And those same people who shouldn't have been laughing when Trump did it, but they were. You could hear from that crowd. They're not laughing when Josh Mandel does it. It's a specific set of skills, as Liam Nason would say. And Mandel don't have it. Yeah, I mean, I don't know. It just seemed like he was being cruel. I got great news, guys. There's more. Oh, yeah. Oh, yeah, let's hear some more.

Morgan, do you know the only country on the whole planet where Africans were not brought as slaves? The Jewish state of Israel. I don't believe that was real. I'm sorry, Jesse. I don't know. The guy you got to play Josh Mandel on that was really good. It sounded like him.

I don't believe that's real. I mean, it's an amazing, it's an amazing little bit because he's both patronizing and also stupid. I would encourage, for this clip, I would encourage our listeners to find it online because you have to see the look, the self-satisfied little look he gives afterwards as if he just scored, like he just won the debate for Harvard in the finals or something, I don't know. It's just, it has to be seen to be believed. And even then, I've seen the clip, and I'm still not sure it's real. The idea that a country that was founded in 1948, like, that's your great example. I don't even know. where to go with this. It's just such a weird thing to say. How can you be this weird? The man is very weird. I mean, even Trump says he's weird, remember? Trump is the whole thing

about how weird he is. But the fact that he's so pleased with himself and he clearly feels he has just, you know, yet again owned, so to speak. The web has been owned. Yeah, no, it's just the look on his face is absolutely incredible. Like, he's expecting the crowd to leap to its feet. and rush the stage and carry him off on their shoulders. Like, that's what he thought was going to happen there. Barbara McQuaid is a former United States attorney for the Eastern District of Michigan and host of the Sisters in Law podcast. Welcome to the new abnormal Barbara McQuaid.

Thanks so much, Molly. I'm really delighted to be with you. So I want to talk about this. You know, my obsession is why the fuck isn't Donald Trump not being held accountable. And you, in fact, wrote this thing. In just security, it is many pages long. Some people might say it's a book. The United States versus Donald Trump, a model prosecution memo on the conspiracy to pressure Vice President Pence.

Can you explain to us what your thinking was when you sat down to write this? When lawyers work at the Department of Justice and they conduct investigations, what they prepare for their supervisors and higher ups in the chain of command is a prosecution memo. So I thought I would write a prosecution memo using just the, the information that is in the public domain to see if you can make the case against Donald Trump for crimes committed on January 6th. And it took a very narrow focus. There may very well be additional crimes. But this was solely relating to his pressure on Mike Pence to see whether any crimes were

committed. I conclude that at least two were committed. One is conspiracy to defraud the United States by obstructing the certification of the president. And the other is obstruction of an official proceeding, that proceeding where they were certifying the president. And what I tried to do was just gather all the information that's out there. And that's something that prosecutors do. You know, you can talk about it and it all sounds kind of bad. But crimes are very elemental. Can you prove the act that is prohibited and can you prove the intent that is required? And so I thought by pulling it all together, people could look at it and then make a decision whether they thought the evidence was there. And so, you know, that's what I endeavor to do in setting up the right thing. So tell me the crimes.

The two I write about are number one, conspiracy to defraud the United States. This is sometimes referred to as a Klein conspiracy after a case by that name, Klein. And it is the very same charge that Robert Mueller used is in his indictment against the internet research agency for interfering with the 2016 election. So it's not an original thought. It is not a far-fetched legal theory. It's the very same one that he used in his memo, actually in a charged indictment. And the idea is that if you use fraud to obstruct some lawful operation of government, it is a crime. It's often used in tax cases. But here, the theory would be that Donald Trump interfered with the certification process that is supposed to happen in an orderly and lawful process and that he knew it was fraudulent to do so. So if you stop it believing you are acting in good faith, that's not a crime. But if you do it knowing that your objection is based on fraud, that is a crime. The second one is obstruction of an official proceeding. This is the crime that has been charged against a number of the January 6th insurrectionists for physically attacking the Capitol on that day and stopping the proceeding. I do not suggest, in my though there may be facts that get us there eventually. I do not suggest that Trump was involved in that,

that his words of incitement caused that attack, that he knew about that attack in advance. I don't believe yet we have sufficient evidence to show that he was working with others to plan that attack. There was a little bit of news today about that, right? Yes. And in fact, I think it's possible that one could get there at some point. If you can show, you know, his inaction perhaps was enough to show his intent to obstruct that official proceeding. But, you know, in my memo, I don't think you need that evidence. Certainly it bolsters the case, but I think it is enough that he was pressuring Mike Pence to thwart his responsibility, to refuse to certify the election on the basis of fraud. And so the key ingredient of both of those, what he did is actually pretty clear, his public and private statements

about pressuring Mike Pence. He sent out tweets. He made public statements. He pressured him in private meetings. I don't think that part's in dispute. I think the hardest part is showing that he knew it was illegal, that he knew he was acting fraudulently, that he knew the election had not been stolen by Joe Biden. And that's why I thought that amassing all of that evidence there was useful to see it in one place, because I have thought, and I have heard, well, it's impossible to prove what was on his mind. You'll never be able to prove it. But by amassing the evidence there, I submit that one can draw a reasonable inference that he had to have known that there was no fraud in the only. So you really can prove both of these crimes? I think so. And again, the hardest element

is this proof of intent and knowledge. So, you know, I'm sure he has never said publicly and probably never even out loud, I know Joe Biden won. But on the election night, Ruth Giuliani said to him, just say we won. And that's what he's been doing. In fact, I think you could even argue that he began this conspiracy even before the election when he started planning the seeds about a rigged election and it'll be the biggest fraud ever and people who vote by mail will be, you know, counting twice and all that sort of stuff.

But I think if you look here, you can see that there is knowledge. There's a instruction that juries get that says something along the lines of, because we cannot read another person's mind, we have to instead draw reasonable inferences based on the totality of the circumstances. And it also true that you don't have to prove that someone actually knew something if you can prove that they engaged in willful blindness. That is, they were aware of a very high probability that the fact was true, but they simply turned a blind eye to something they did not want to acknowledge. And I think in light of those instructions, when you pile up the evidence, I think you can't help but conclude that Donald Trump knew that there was no fraud here. And if I might just list some of

them, we had his own cybersecurity chief, Chris Krebs, issue a statement in November that says there was no fraud. We have his own campaign issuing a memo internally that says there was no fraud in the voting machines in November. We have William Barr publicly announcing there was no fraud that could have made a difference in the outcome of the election. We have all of his successors at the Justice Department insisting there was no fraud. We have the Director of National Intelligence, John Ratcliffe. All of these people, allies have Donald Trump telling him there's nothing in the intelligence community that says there was any fraud here. We have 61 out of 62 judges who heard cases rejecting Trump's cases.

And the one court where Donald Trump won was about an affidavit issue that did not affect the outcome. In fact, some of those judges even impose sanctions on the lawyers who brought those cases because they were so baseless. And even Pence himself told him that there was nothing to all of this, that as much as he would love to please Donald Trump, he had talked to the Senate parliamentarian and legal experts and all other kinds of people and just concluded that there's just no basis for doing this. And so in light of all of that evidence, I think it is a reasonable inference to conclude that Donald Trump absolutely knew there was no evidence of fraud. In fact, he just made it up. He made it up out of whole cloth. As one judge said, there was not a scintilla of evidence of fraud.

It was just made up. It's as if, Molly, someone said, I believe the earth is flat. Well, how many scientists and how many have to tell you and how many photos do you have to see from outer space before we can infer that when they say the earth is flat, they're lying. They know the earth is round. And I think perhaps we've reached that point in this case. So what is Merritt Garland waiting for? Well, I think one thing that the public probably underestimates is how difficult it is to amass evidence to prove a case beyond a reasonable doubt. So, number one, I don't know that he's waiting.

You know, the policy of the Justice Department is to neither confirm nor deny the existence of an investigation. He told us on January 5th. He was investigating all events surrounding January 6th. He would investigate anyone at any level, regardless of whether they were present on January 6th, and asking the public to be patient because we must begin with smaller cases and work their way. up to the bigger cases and the more complex cases. And so I'm hopeful that he is investigating, that there is an investigation underway. We know, for example, that they are investigating all of these people who are there on January 6th. We've also seen public reporting that they've subpoenaed

records from Sydney Powell that could suggest an investigation. We know that Rudy Giuliani is under investigation in a related case. That could create some pressure or leverage to use with him. And so the one criticism that I've heard that does resonate a bit is don't you think that if an investigation of this magnitude, if it were going on at the grand jury and they were subpoenaing

people to come in, that it would have leaked by now? And despite people's best efforts, they often do leak because witnesses are permitted to tell when they've been inside. So I don't have a good answer for that. And it is quite possible that they're not. I would hope that they are. Now, whether they actually file charges at the end of the day, I think requires some additional considerations, which I included in my model memo here, my draft

memo. Just because you can charge a case doesn't mean you should charge a case. And there are a number of factors that the Justice Department says prosecutors should consider in deciding whether to charge, even if there is sufficient evidence to obtain and sustain a conviction. Interesting, though, it does seem like the FBI raiding Rudy Giuliani's house. Like, could that be related to the DOJ or is that totally separate? The reporting on that was that it related solely to his acting as a foreign agent for Ukraine without registering as he's required to do under the law. But number one, I don't know if that was the basis or the sole basis. And number two, once you lawfully acquire evidence through a court process, as the FBI did, 18 digital devices from Rudy Giuliani,

you're able to look for anything the search warrant authorizes you to look at. So anything related to his conversations with Donald Trump, for example, I think would be covered under that since he was trying to negotiate with representing both Trump and Ukraine. There's some privilege issues there that have to be worked through, and I think they're still working through them. If they are in place to look at all of those, they could very well find text messages or other communications that relate to the January 6 matter as well, and those communications could be used in a case like this. So it may be that under cover of that investigation, they're also investigating his role in January 6th. I mean, it does seem to me like there's so many investigations going and so much there.

Now, can I ask you to weigh in on what's happening with the New York criminal case for a minute? Sure. The reporting was these two very respected lawyers have resigned and that we're sort of that one plus one equals two here and that they're doing it because Bragg won't necessarily bring criminal charges against us. Donald Trump, is that your read of it? And how unusual is this? And what does it mean? Yeah, I don't know. I think that we're going to learn more about this in the coming days. I'm hopeful that we will. It seems very odd to me that these two respected, experienced prosecutors would walk off the case or coincidentally resign on the same day if they weren't doing so because they were dissatisfied with something they had heard from the higher ups. The big thing that's changed in this case is the prosecutor. It used to be. Sy Vance, now it's Alvin Bragg. And there has been reporting that he was not terribly impressed

with the merits of the case. And so it may very well be that he told them he's shutting it down and they resigned in protest or because their work is over. With regard to Mr. Pomerantz, the private lawyer who came in to work just on this case, I could imagine that he says, well, my work here is done. It's time for me to go. But the other lawyer is a career lawyer. And so for him to say the case is over and I'm leaving suggests to me that perhaps he was unhappy with that decision. Now, reasonable lines can disagree as to the merits of a case. Sometimes people do things that are awful, but lawful. Or I can imagine a scenario where Mr. Bragg said, I think the civil case here that the Attorney General is looking at makes perfect sense. That

seems like the appropriate way to handle this case. And I think we should stand down on our criminal charges. Maybe he said something like that, that I don't think this amounts to criminal liability, but it's better as civil liability. That could be a scenario. And, you know, I don't impute ill motives to Alvin Bragg without knowing more. I think there's certainly plenty of members of the public who would love to see nothing more than Donald Trump go to prison. But you can't do that unless someone has committed a crime. And if this was merely civil fraud, and that's what the prosecutor there believes, the voters entrusted him with that responsibility. And he gets to make that call. But I think we'll know more at some point. And I'd like to know more before giving more of an opinion

than that. It does seem like the bar is pretty high to prove this devaluation fraud for real estate, especially because Donald Trump has definitely done a lot of really crimey stuff in his time, as is illustrated in your memo. But it does seem like this practice is a pretty common practice. Wouldn't it make the bar for proving criminal liability be higher? It is crimey. Yeah, it is There are complexities here. I don't know that they are insurmountable. I've certainly been involved in broad cases involving the valuation of assets. You know, for example, in the document that Attorney General James filed showing why she needed these depositions and demonstrated the evidence she had found to date, she had a couple pretty egregious examples. You know, one was a real estate

property that was valued at $200 million one year and $400 million, the next. That's pretty eye-popping. You know, that's not quibbling over the details, you know, over the loose change. And there was another instance that, you know, has gotten a lot of attention in that Donald Trump said that the square footage of his apartment at Trump Tower was 30,000 feet when in fact it's 10,000 feet. that's a pretty big and objective measure that I think you can prove fraud. And so, you know, we haven't seen the evidence. How were these represented? To what extent was Trump himself personally involved in these representations? You know, I think when you are a business executive, there is some truth to this, but it's also easier to fabricate. I was a busy guy. I didn't have time to drill down on the details. I'm the visionary leader. I rely on other people to count the beans. And so I could

imagine, you know, with that kind of defense and a presumption of innocence, it is not unreasonable to think that Alvin Breg looked at this evidence and said, maybe there's a good civil case here, but I don't think there's a good criminal case here. So, you know, without seeing the evidence, it's hard to say. But, you know, I would at this stage give him the benefit of the doubt. He has a reputation as being a straight shooter, a long-time fraud prosecutor. So he knows, you know, how to make a case and he knows when to decline one.

So, you know, until I see more, I don't think I would criticize him. Right. Which, again, we don't even know. If, in fact, he's made one. Very little of what's happening. Yes, exactly. We just know that it's crimeing. Thank you, Barbara McQuaid. Please come back.

Oh, thanks, Molly. Any time. Glad to be with you. On that note, we'll wrap this episode of the new abnormal from The Daily Beast. In future episodes, we'll be talking to smart folks from the Daily Beast and beyond from media, culture, politics, and science. We'll help us understand what's happening to our country and the world. We hope you'll subscribe to us on your favorite podcast app and share the show on social media. Thanks so much for listening, and we'll see you again on the next episode. Want more great listen? check out our comedy podcast, The Last Laugh,

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