TONYA MOSLEY, HOST:
This is FRESH AIR. I'm Tonya Mosley. President Donald Trump's campaign against his political enemies is intensifying. 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, Binaifer Nowrojee, 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. And when U.S. attorney Erik 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?
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PRESIDENT DONALD TRUMP: It's not a list, but I think there'll be others. I mean, they're corrupt. These were corrupt, radical left Democrats. 'Cause Comey essentially was a - he's worse than a Democrat. I would say the Democrats are better than Comey. But, no, there'll be others. Look, it was - that's my opinion. They weaponized the Justice Department like nobody in history. What they've done is terrible. And so I would - I hope there - frankly, I hope there are others 'cause you can't let this happen to a country.
MOSLEY: 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 McQuade. 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 McQuade, welcome to FRESH AIR.
BARBARA MCQUADE: Thanks very much, Tonya. Glad to be here with you.
MOSLEY: 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.
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PAM BONDI: 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 Blanche, with our incredible intel community, Tulsi Gabbard, John Ratcliffe, going nonstop around the clock. People will be held accountable.
MOSLEY: 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?
MCQUADE: 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 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, you know, my devotion of my career there, but what it could do to Americans who might disagree with this president.
MOSLEY: 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 Soros 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 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?
MCQUADE: 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. But one of the things he said in this speech, entitled The Prosecutor, which is posted on the wall of many U.S. attorneys' offices, is the importance of not targeting individuals, but of targeting crimes. And so if a crime occurs, you investigate and you charge the people responsible. But if you instead choose a person and then try to dig up whatever dirt you can on them, that is the opposite of the way that the tool is supposed to work. It is a way that it can be weaponized and a way that power can be abused.
That seems to be what is happening in the case of George Soros. He obviously is a very powerful, wealthy individual. He funds candidates and programs that support Democrats and progressives. And so it's understandable why a Republican president might want to try to upend those efforts. But one of the things that has been part of the post-Watergate norms is an FBI manual referred to colloquially as the DIOG, which stands for Domestic Investigations Operations Guide. And one of the provisions in that DIOG, one of the main and first provisions, is the need to have predication before you can start an investigation. Predication means that we have some factual allegation that we've received and in good faith, we are going to open an investigation. It is a good-faith allegation of a crime or a threat to the national security.
So it would be improper, for example, for me to say, I want to look at everybody on the board of governors of the Federal Reserve, and I'm going to dig into their backgrounds until I find something they've done wrong, and then I'm going to use that to prosecute them. Instead, what you're supposed to do is find an allegation of a crime. Perhaps a bank reaches out with a suspicious activity report and says, here is an irregularity in a mortgage application. We want to share that with you for potential investigation. That would be appropriate predication. That recording you just played of Pam Bondi, what she alleges that George Soros is responsible for doing is being a billionaire, funding campaigns to remove President Trump from power. Well, is that not exactly what Elon Musk did in reverse? I mean, yes. That is currently how our campaign finance system works.
MOSLEY: Barbara, it's really interesting what you just shared with us about this FBI manual and the guide of factual allegations because one of the other things that's interesting about this Soros investigation - they're talking about ideas from the fringe. Many of these allegations are conspiracy theories. Have we ever been here before where conspiracy theories also make their way into government and actually become the basis for prosecution?
MCQUADE: Boy, I don't know if we've ever been here. I suppose there may have been other examples where we have seen that. But it is contrary to this idea of predication, which is designed to eliminate all that sort of stuff. I can remember when I was serving as U.S. attorney, we would frequently get calls from supporters of political campaigns who wanted to share dirt on their rivals. They just wanted us to open an investigation so that then there could be a headline. They'd even say to us in the calls, so my rival did X, Y and Z. Are you going to open investigation? Because then they would be the leak in a newspaper report that their arrival was under investigation 'cause 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 Volodymyr Zelenskyy back in - you know, 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.
MOSLEY: If you're just joining us, my guest is legal scholar Barbara McQuade. We'll continue our conversation after a short break. This is FRESH AIR.
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MOSLEY: This is FRESH AIR. Today, we're talking to Barbara McQuade about the implications of a Justice Department that targets critics of the president and what that means for the rule of law and democracy more broadly. McQuade is a professor at the University of Michigan Law School and a former U.S. attorney who was dismissed by President Trump in 2017.
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'd make you describe it that way.
MCQUADE: 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, Lindsey 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.
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. 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 Lindsey Halligan doing all of this work.
MOSLEY: 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?
MCQUADE: 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.
MOSLEY: Let's play a little bit of that testimony.
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TED CRUZ: On May 3, 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. Now, what Mr. McCabe is saying and what you testified to this committee cannot both be true. One or the other is false. Who's telling the truth?
JAMES COMEY: I can only speak to my testimony. I stand by what - the testimony you summarized that I gave in May of 2017.
MOSLEY: And that was a clip from testimony from 2020.
MCQUADE: 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.
MOSLEY: 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?
MCQUADE: 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, Tonya, with robbing a bank, the First Bank of America, on July 1. But at trial, the evidence I prove is that you robbed the Second Bank of America on August 1. 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 1 of this year.
And so for that reason, you know, 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 Lindsey Halligan, she does not seem ready for prime time with the skills required and experience required to handle a federal criminal case.
MOSLEY: I want to play a clip. Actually, Comey gave a statement about all of this on Instagram right after the announcement. Let's listen.
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COMEY: My family and I have known for years that there are costs to standing up to Donald Trump, but we couldn't imagine ourselves living any other way. We will not live on our knees, and you shouldn't either. Somebody that I love dearly recently said that fear is the tool of a tyrant, and she's right. But I'm not afraid, and I hope you're not either. I hope instead you are engaged, you are paying attention and you will vote like your beloved country depends upon it, which it does. My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system. And I'm innocent, so let's have a trial. And keep the faith.
MOSLEY: That was James Comey himself, expressing faith in the judicial system to vindicate him.
You know, even if he's ultimately acquitted, Comey's now facing a lot of legal proceedings - years, possibly - massive legal bills, the stress of federal indictment. His family is also tangled. His daughter Maurene was fired from her position as a federal prosecutor in July. His son-in-law, who was also a federal prosecutor, has resigned. Is that part of the point - that the process itself becomes the punishment?
MCQUADE: So prosecutors are required to take great care not to charge people just to put them through the ringer. And so this, to me, feels like an abuse of those principles, an abuse of that process. One of the things that was instilled in me as a U.S. attorney in making these kinds of charging decisions was, just because you have the power to do something doesn't mean it is wise to do so. So could they get a grand jury indictment here? Yeah. I guess they were able to muster sufficient probable cause at least for two out of three of the charges, although we know from reporting that only 14 out of the 23 grand jurors voted to indict. That is astonishing because now at trial, you've got to convince 12 jurors, and all 12 of jurors unanimously, of a much higher standard - guilt beyond a reasonable doubt.
And so even though you can charge someone just with the bare-bones minimum of probable cause, and just if you can convince a majority of the grand jurors, it's unethical to do that unless you believe that the evidence is sufficient to obtain a conviction at trial. Now, you don't need a slam dunk. But it needs to be probable that, yeah, I think I got it. Of course, there's always the chance of a holdout juror, or the evidence doesn't come in the way you expected it to. But you have to believe, like, it's likely I'm going to get a conviction at trial. I just can't believe anybody looks at this case and thinks that's true.
MOSLEY: Let's take a short break. Our guest today is legal scholar Barbara McQuade. We'll be right back after a short break. I'm Tonya Mosley, and this is FRESH AIR.
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MOSLEY: This is FRESH AIR. I'm Tonya Mosley, and we're talking with Barbara McQuade, a former U.S. attorney and current law professor at the University of Michigan. She's also the author of "Attack From Within: How Disinformation Is Sabotaging America." We're discussing the Justice Department under President Trump and what happens when conspiracy theories and political grievances become the basis for criminal investigations.
Barbara, you were a U.S. attorney when Trump forced you to resign in 2017, along with dozens of other federal prosecutors. Can you briefly share what happened to you?
MCQUADE: Yes. So it is not unusual for a president to replace U.S. attorneys. It's pretty typical and even expected. I had actually planned to leave, myself, at the end of April to come work at the University of Michigan by that time. But it was a very abrupt way to end the tenure of - I think it was something like 47 remaining U.S. attorneys who had been appointed by President Obama. And to me, that was just not a - not good government. On a Friday afternoon in March of that year, I started hearing from colleagues around the country that they had been fired. Our public affairs officer came into my office and told me how sorry she was, and I said, what are you talking about? And she said, oh, they've just announced - the Justice Department has just announced that all of the Obama U.S. attorneys...
MOSLEY: Oh, Barbara.
MCQUADE: ...Have been asked to resign. So - but we had just days before been told by the new attorney general, Jeffrey Sessions (ph), that we would be allowed to leave when our successors were named so as to promote an orderly transition of power. And suddenly, something irked President Trump. I know Preet Bharara, the U.S. attorney in the Southern District of New York, thinks it was his failure to return his phone calls that got him angry and got him fired and then - and all the rest of them, too. So I don't know how that happened, but it just struck me as an example of putting public spite ahead of what was in the best interest of the American people.
MOSLEY: You know, what's interesting about that - I actually do want to clarify something. The lead prosecutor for the Comey case, Erik Siebert - it's used interchangeably that he was fired by the president, but then that he resigned. Do you know exactly how it went? I mean, what you're saying is kind of - they kind of both happen sort of in tandem, where someone resigns after they hear that they're being fired potentially.
MCQUADE: Yeah. It's not uncommon for somebody to be told you must resign. And I suppose, in some ways, that's a face-saving way out to resign. It also protects the leader from criticism that they fired this person. Well, they resigned. What else could I do? I think the facts on the Erik Siebert departure from the U.S. attorney's office are a little murky. He said that he was resigning, but then President Trump took credit in a Truth Social post a few days later to say, you know, he a woke RINO who was never going to do the job. He didn't resign. I fired him.
So I don't know what the facts are there, but I think it's fair to say he was forced to leave over his decision. And it may be the Comey case. It may be the Letitia James case, but over some of these decisions where President Trump was urging criminal charges, and a, you know, seasoned professional prosecutor declined to do so.
MOSLEY: Barbara, can you give us a brief history of the key reforms that were put in place after Watergate?
MCQUADE: Sure. So after Watergate, when we saw President Nixon abuse his authority in a couple of ways - I mean, one certainly was in an effort to stop the FBI's investigation into his own involvement in the Watergate break-in. He directed that the FBI be told that the CIA was investigating and that they needed to stand down. And so that kind of meddling by the president was seen as politically based and inappropriate.
Now, norms were put in place to prevent that kind of thing. One is a limit on communications between the White House and the Justice Department. They are not supposed to talk about cases. There is an exception for people at the highest level - the attorney general, White House counsel. But that is to make sure that the nation's interests are being protected. So if, for example, the Justice Department is about to unseal an indictment against the president of Iran or the head of a terrorist organization, you might get the State Department in the room, you might get the White House in the room to make sure this is not going to disrupt some diplomatic negotiations that are going on at the moment. So that kind of coordination occurs. But what's never supposed to happen is the president directing who should be charged or not charged. That is a post-Watergate norm.
MOSLEY: Were there other norms that were also put in place after Watergate?
MCQUADE: Yes. So among them are some of the things we've already talked about. One is this idea that you neither confirm nor deny the existence of an investigation. And, you know, that is to protect the reputation of someone who's investigated who might never be charged with a crime. Another of these principles of federal prosecution, which provide a number of factors that prosecutors should consider when deciding whether to exercise their discretion to bring a case, what is the public safety benefit of the charges? What is the deterrent effect on other would-be criminals? What is the public safety goal here? What is the likely sentence that will be achieved? If the only outcome here is going to be probation, then maybe that's not a good use of our resources. But there are also prohibited factors like race, religion and political association. So those are things we're seeing violated.
The other thing that came along was control over the way the president uses surveillance powers. Because we knew that in the Nixon administration and in the FBI of J. Edgar Hoover, surveillance powers were used to monitor political enemies, like Martin Luther King or Vietnam protesters or other civil rights leaders. We saw the enactment of the foreign Intelligence Surveillance Act that made it clear that the president can only monitor and surveil and wiretap people under certain circumstances. They have to either use the FISA Court, which requires review by a court before you can monitor foreign intelligence targets, or that Title III, the wiretap law, is required for other investigations. All of that leaves some areas of gray about what's permitted in the in-between.
We know that arguments have made in the past that the president has inherent authority to protect the national security and to engage in surveillance, but it was considered a grand bargain at the time between the White House and Congress that this would be the only way that surveillance would be conducted. However, the White House, as from time to time, notably in the Bush administration, made the argument that the president has inherent authority even beyond those two tools to collect surveillance. Do we know whether Kash Patel has asserted that authority and is using surveillance against Trump's political enemies? I don't know. But I think the fact that President Trump has said, I'm going to do what I believe I can do, not what I should do - I worry about whether they are using surveillance tools against the rest of us to blow through those norms that were put in place after Watergate.
MOSLEY: Let's take a short break. If you're just joining us, my guest is Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan and professor at the University of Michigan Law School. This is FRESH AIR.
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MOSLEY: This is FRESH AIR. Today, we're talking to Barbara McQuade about the implications of a Justice Department that targets critics of the president and what that means for the rule of law and democracy more broadly. McQuade is a professor at the University of Michigan Law School and a former U.S. attorney who was dismissed by President Trump in 2017.
Let's talk about the next targets or potential targets. You mentioned Letitia James, New York's attorney general. Her 2018 campaign - she pledged to investigate Trump. And in 2022, she brought civil fraud charges against him. States are supposed to be able to hold powerful people accountable, even the president, without fear of federal retaliation. Now Trump has turned the Justice Department on her right after she won her case. And prosecutors refused to bring charges, were fired. What happens to the balance of power if presidents can prosecute state officials who challenge them?
MCQUADE: You raise a really important point and that - one that Republicans in particular have always made, which is the importance in our federal system of states' rights. Our system of comity - C-O-M-I-T-Y - is that we respect the rights of states and local government to do their work. And so an attorney general or a Manhattan district attorney who is doing their work that - and then find themselves targeted by the Justice Department for their work is a very disturbing use of federal power to squash state and local power. And I think that is something that should concern all of us.
You know, there were times when the tables were turned, and we saw Democrats who favored the use of federal power, and it was Republicans who supported state power. But if you were to ask the framers of our Constitution their view of this, they would say, well, the Tenth Amendment reserved powers for the states. That is what they are supposed to do. And so this is a violation of our constitutional separation of powers, not just among the three federal branches of government, but between the allocation of power between the federal government and state governments. The people of New York elected Letitia James to be their attorney general. The people of Manhattan elected Alvin Bragg to be their district attorney. And so to attack them for their work is a very dangerous thing to that balance of power.
MOSLEY: What is the potential chilling effect here? If you're a state attorney general right now, you're watching all of this unfold, how does that change your calculations about investigating federal officials or the president?
MCQUADE: Yeah. One would hope that a person with integrity and who is doing the job they were elected to do would move forward without fear or favor. That's a phrase prosecutors are fond of using - right? - without fear or favor. But when you see your colleagues around the country not just criticized but targeted for criminal investigation and, in the case of Jim Comey, indicted, wow, that makes you think twice, right? Because nobody ever gets in trouble for something they don't do.
And so I remember that - hearing one of the greatest criticisms you could hear of one FBI agent of another was to say, he follows the principle of he who does nothing does nothing wrong. That's not the job. The job is to hold people accountable when they violate the law. And you have to be brave. You have to have the courage to do these kinds of things. But I can imagine the chilling effect that happens when there is a prosecutor in a state AG's office or a county DA's office, and they see what's happening to others around the country and you just say, this one's hard. Let's skip this one and move on to something else that's more low level so that I don't have to worry about the consequences.
MOSLEY: Barbara, I want to also ask you about Senator Adam Schiff and the allegations against him. Just to remind people, he led Trump's first impeachment. Trump is accusing Schiff of mortgage fraud - the claim that Schiff falsely declared his Maryland house as his primary residence to get better loan terms. First off, what is the merit of that charge? How do you assess it?
MCQUADE: So mortgage fraud is a crime that gets charged with some frequency. It was charged in my former office a great deal, especially after the 2008 financial meltdown. But it requires more than conflicting statements. So it appears that Adam Schiff may have checked the box on two different properties to say they would be his primary residence. And logic tells us that a person cannot have more than one primary residence.
So on its face, it's a red flag, and it might merit further investigation. But that alone is not evidence of mortgage fraud. Mortgage fraud requires that a person make a false statement that could be false but they do so knowingly - so not a mistake, not an error - that they do so willfully - that is, I knew it was illegal, and I did it anyway - and that the statement is material. That means it mattered. The person got either better loan terms or they qualified for a loan they - that otherwise would have been rejected. So it requires a great deal of investigation before that happens.
Most of the time, when you get a referral for these things, they come from a bank that says, we've noticed this false statement in these documents, and we are referring it to the FBI for further investigation. That's the predication that we talked about earlier that's required in the DIOG, the Domestic Investigations Operations Guide. What appears to have happened here is the process in reverse to reverse engineer these cases. So who are Trump's enemies? And let's dig through all of their records and see if we can find anything we can pin on them.
MOSLEY: Yeah. I was also wondering, with this charge, isn't - like, maintaining homes in both a district that a sitting senator's from and near the Capitol is something that often happens.
MCQUADE: Yes, certainly. And so it may be that Adam Schiff did think of both of these places as his primary residence, right? You have to show not only that they knowingly made this statement, right? So I didn't check the box in error as I was filling out this form. And if you've ever, you know, closed on a mortgage, you know that they put a big stack of papers in front of you and say, sign here. I don't even know that it was Schiff himself who checked the box or some lawyer or real estate agent, and he just signed all the documents at the bottom.
You have to show that they knew that they were making this false statement, but also that they did it willfully, which means they knew it was illegal at the time they signed it. That's a pretty high standard to prove. The way you usually prove it is conflicting statements - the fact that perhaps they told somebody that, I got a loan that I otherwise would not have qualified for, that they first got rejected, and they came back and they made changes. There are a number of ways to do it.
You know, in the case of Lisa Cook, she's another person - a governor of the Board of the Federal Reserve - who has been accused of mortgage fraud. This is another one of these things. Now, the referral didn't come from predication through a bank. It came from Bill Pulte, who is the head of the FHFA, who revealed these red flags, I suppose. But it's been determined that on other documents, she indicated that the Atlanta property would be a vacation home. And so you have to look at the whole context, the totality of the circumstances. You can't pluck out one red flag and say, therefore, she's guilty of a crime.
MOSLEY: Our guest today is legal scholar Barbara McQuade. We'll be right back after a short break. This is FRESH AIR.
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MOSLEY: This is FRESH AIR. Today, we're talking to Barbara McQuade about the implications of a Justice Department that targets critics of the president and what that means for the rule of law and democracy more broadly.
You know, speaking of DOJ norms, I mean, with James Comey, during the first round where Trump was elected, he actually disclosed that there was an investigation of Hillary Clinton and her emails.
MCQUADE: Yeah. And I think most of us at the time who worked at the Department of Justice realized just how awful that was, what a deep violation of the norms it was. It was an arrogant act, I think, by James Comey. I think it was a bit of a selfish act. And in my opinion, I think he was trying to preserve his own reputation among Republicans by castigating Hillary Clinton. What you may recall is the investigation itself was sort of publicly known because of the use of the email server. It was a referral by Congress, and so it was pretty well-known that it was happening. Where I think...
MOSLEY: Also Trump's rhetoric, where he talked quite a bit about it during the election.
MCQUADE: Yes. And so the fact that it was acknowledged didn't bother me too much because I think that was already in the public domain. I think a straight, by-the-book response, however, would have been, we can neither confirm nor deny the existence of an investigation. I think that would have been more appropriate. However, there is an exception when necessary to assure the public that the FBI is on the job. And so maybe I give him a pass there to acknowledge the investigation.
But where I really part ways with the way he handled that was two things that he did. One, he announced that they were closing the investigation. That announcement really should have come from the attorney general, but she had recused herself by then, or the deputy attorney general, Sally Yates. An - you know, an inspector general report has indicated that Comey just called her and said, I'm making an announcement today - heads-up - didn't tell her what it was about and then made this announcement.
And what he said then was - you know, he said the FBI was recommending that no charges should be filed, and the case is closed. I guess that's fine. If it was publicly announced, I guess you can announce that it's closed. But then he didn't stop there. He went on further to say that Hillary Clinton had been extremely careless. And he criticized her and talked about the case and all of the bad things that they had found. That is not how an investigation is supposed to work.
But then the second sin of Jim Comey came shortly thereafter. So this closing of the announcement comes in the summer of 2016, so maybe before many voters are paying attention. But then, in October, very shortly before the investigation, Comey announces that the investigation has been reopened. Now, that's because - you may recall this scandal - Anthony Weiner, who was married to Huma Abedin, a close aide of Hillary Clinton, had a laptop seized in an investigation relating to pornography. And as the FBI is looking at that laptop, who is - which is shared with his wife, Huma Abedin, they find more of these Hillary Clinton emails that had been sent or received on her private server.
And so Comey sends a letter to Congress, certainly knowing that this will become public, saying, the investigation is open again because we have to look at these emails that were on the laptop of Anthony Weiner. He says, I don't know how long it's going to take. I'm not sure it can be completed before the election, so I just wanted everybody to know that the investigation is open again. Again, this is a violation of the policy to neither confirm nor deny the existence of an investigation.
What Comey said later is, I felt it would be inappropriate to conceal that we had reopened the investigation, since everybody had known that it was closed. Boy, is that turning this policy on its head. And of course, now there's another headline - and now it's shortly before the election - that says, FBI reopens investigation on Hillary Clinton. So that's another, you know, black mark on her as we approach the election. It gets closed just a few days later. They look at these emails. They see that these are just a few of the same duplicates that they had seen before. They're able to review them quickly and conclude that there is nothing that is the basis of criminal charges here for - you know, misusing classified information was the basis of that investigation. So now it's closed. But of course, the headline is still there, fresh in people's minds as they cast their ballots.
MOSLEY: I want to talk a little bit with you, Barbara, about Trump's rhetoric as legal strategy, because what strikes me is that he is creating an incredibly detailed public record. And I'm just wondering if his own words could actually end up helping the defendants.
MCQUADE: I think it's possible. I imagine that Jim Comey's lawyers are at least thinking about filing a motion to dismiss this case on the grounds of selective prosecution. Selective prosecution is a violation of due process rights if a defendant can show that the case was brought for an improper purpose. Sometimes that could be race. It could be religion. One of the most famous cases of selective prosecution involved charges against operators of laundry services in San Francisco in wooden shops. So after the great fire in San Francisco, there was a prohibition on running laundry services in wooden buildings because of the danger of fire. But it turned out that the prosecutions were only brought against Chinese owners of laundry services in wooden buildings and not white operators. And so they successfully brought a claim of selective prosecution. You're only going after one race of people in prosecuting this case.
It's difficult to prove this claim, however, because it requires a couple of things. One is showing that others similarly situated were not charged with crimes. In the case of the laundry services, they were - it was easy to do that because they could just line up and say, look, here are all the Chinese owners. Here are all the non-Chinese owners. These were charged. These weren't charged. In a case like Jim Comey's, it's hard to prove the negative - that somebody else did make a false statement before Congress but wasn't charged. But what's easy to prove in this case is the second element. That is an intent to discriminate on some improper purpose. And in addition to race or religion, a political motive is an arbitrary and prohibited basis.
And so here is where Trump's messages could be very valuable to the defense team because you'd have to show an intent to treat someone differently on the basis of politics. So all these things about Comey's a scumball or a slimeball or whatever the words that Trump has used - I think those could be strong evidence for that other element of intent.
MOSLEY: Barbara, you're a professor. You're teaching future lawyers right now at the University of Michigan. How do you prepare them for this reality? I mean, what do you tell them about ethics when the government is prosecuting people based on, you know, conspiracy theories and grievances?
MCQUADE: Yeah. Well, there are a couple things. One is we teach them the norms, right? We teach them the rules of ethics. We teach them what is in the DOJ's policies and principles of federal prosecution. These are the expectations. These are the norms. And these, as a member of any bar of any state, are your ethical obligations. Every state has model rules of professional responsibility based on the American Bar Association's versions, including a rule, 3.8, that includes special duties of a prosecutor. So we teach them those things.
I also have a segment of my class every day where we talk about things in the news, things that appear to be unusual and abnormal. And although, you know, the president - does he have the power to do these things? Some are untested. As I said earlier, however, just because you can do something doesn't mean you should do something. So I just ask the students to consider whether this use of power is, one, lawful, and two, ethical, and three, an appropriate use of power in a democracy. And so we discuss those things, and I think it's important to listen to voices. Reasonable minds can disagree about what you should do. But I think when it comes down to the law and ethics, everybody needs to know where those lines are drawn.
MOSLEY: Barbara McQuade, thank you so much for this conversation.
MCQUADE: Thank you, Tonya.
MOSLEY: Barbara McQuade is a professor at the University of Michigan Law School.
Tomorrow on FRESH AIR, Dwayne Johnson once considered switching from wrestling to mixed martial arts. He never did it, but now he plays a pioneer of MMA in the new film "The Smashing Machine," based on the life of Mark Kerr. Johnson talks about the film, being The Rock and being a third-generation wrestler in his family. I hope you can join us.
(SOUNDBITE OF TED NASH'S "WATER IN CUPPED HANDS (AUNG SAN SUU KYI)")
MOSLEY: To keep up with what's on the show and get highlights of our interviews, follow us on Instagram at @nprfreshair. FRESH AIR's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham. Our managing producer is Sam Briger. Our interviews and reviews are produced and edited by Phyllis Myers, Roberta Shorrock, Ann Marie Baldonado, Lauren Krenzel, Therese Madden, Monique Nazareth, Thea Chaloner and Anna Bauman. Our digital media producer is Molly Seavy-Nesper. Our consulting visual producer is Hope Wilson. Susan Nyakundi directed today's show. With Terry Gross, I'm Tonya Mosley.
(SOUNDBITE OF TED NASH'S "WATER IN CUPPED HANDS (AUNG SAN SUU KYI)") Transcript provided by NPR, Copyright NPR.
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