The following is a lightly edited transcript of the April 30 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
Donald Trump’s corrupt use of state power to persecute his enemies is dramatically ramping up. The Justice Department just indicted former FBI Director James Comey on laughably thin charges. And the Federal Communications Commission chief is escalating his war against ABC due to Trump’s rage at Jimmy Kimmel. These are heinous abuses of power, but we also think they’re likely to backfire on Trump in a major way. If and when they fizzle, the result will be that they don’t even energize the MAGA base for the midterms, and if anything, will likely drive votes against the GOP.
We’re digging through all this today with former federal prosecutor Barbara McQuade, author of a new book, The Fix: Saving America from the Corruption of a Mob-Style Government, which is certainly an apt title given these latest developments. Barb, good to have you on.
Barbara McQuade: Thanks, Greg. Great to be here. You know, when I first came up with that title, like a year and a half ago, it felt very novel and now it feels very obvious.
Sargent: It’s perfect. You were prescient there. Well done. So let’s start with James Comey. Trump’s effort to prosecute him the first time failed. Now they’re starting again. James Comey has been indicted for an image he put on Instagram last spring showing seashells arranged to depict the numbers 86-47. Barb, can you walk us through what prosecutors are trying to do here and why it’s such a joke?
McQuade: Yeah, it’s hard to get into the head of what’s happening at DOJ right now because it’s so far afield from what I saw in my 20 years as a federal prosecutor. We saw the effort to convict James Comey of a crime in the fall fizzle. And so now here we are with this charge based on events that occurred almost a year ago. If this were really such a serious charge, you know, what on earth could explain an almost year-long delay?
I know Todd Blanche and Kash Patel said that they’ve been investigating the case, but my gosh, they had the post in May and they interviewed Comey the next day. I don’t know what more is necessary. Go out to sea and find the actual seashells? I don’t think so.
And so, this statute is something I’ve charged. Threatening to kill a president is a serious crime and people do get charged with it from time to time. The essence of the charge is it has to be what’s called a true threat. It’s not enough to say, I don’t like the president or even to say the president should die. You have to express a true threat.
And what the court has said, as recently as 2023 in a case called Countermann v. Colorado, is that a true threat is—I’m reading here from the case—”a serious expression that the speaker means to convey an intent to commit an act of unlawful violence.” That’s a high standard. And the reason it’s such a high standard is to separate what is a true threat from mere political speech.
Of course, in this country, we give a lot of protection under our First Amendment to free speech. And so to make sure that it isn’t just, you said something mean about the president, you said something about your wishes about the president—those are not enough. It has to be a threat to commit an unlawful act of violence against a target. And I just don’t think we have that here.
Sargent: So we’ve got the number 86 here, which seems to be at issue. It seems to be getting construed as a threat itself. Let’s listen to Trump talk about that for a sec. Here, a reporter asks Trump if he really thinks Comey’s shell image threatened his life. Listen.
Reporter (voiceover): Do you really think that he was endangering your life or threatening your life with that?
Donald Trump (voiceover): Well, if anybody knows anything about crime, they know 86, you know, and 86 is a mob term for kill him. You know, you ever see the movies—86 him? The mobster says to one of his wonderful associates, 86 him. That means kill him. It’s—I think of it as a mob term. I don’t know. People think of it as something having to do with disappearing. But the mob uses that term to say when they want to kill somebody, they say 86 the son of a gun.
Sargent: Barb, he can’t even bring himself to pretend to believe that’s real, right? I mean, look—so the term 86, you wrote in a piece for MSNBC about this. Can you talk about the term 86 in this context and why this construal is so friggin’ ridiculous?
McQuade: Yes. So as far as I know, the term comes from the restaurant business, where to 86 means to cancel an order. I know Merriam-Webster says it can mean to remove. I suppose Donald Trump thinks it’s used by the mafia—I guess he would know, I don’t—to mean to kill somebody. But I think it’s a vague term. It’s capable of numerous interpretations.
It could mean impeach the president. It could mean remove him from office. It could mean don’t vote for him. It could mean don’t support his—it could mean no kings, right? It could mean a lot of things.
Sargent: Is there any planet on which it clears the threshold you laid out just before, which is that it has to be a very clear expression of a deliberate and imminent threat with real intent behind it?
McQuade: Yeah, I don’t think it does. And, you know, in addition to the statement itself, I think that if this case were to go to trial, Jim Comey himself would testify and he would get on the stand and say what he told the Secret Service agents the day after the post, which was, I had no idea people viewed this phrase this way, I certainly didn’t intend to express any sort of threat. And he took it down immediately.
I think in light of that, combined with the vague nature of the statement itself, there’s just no way a jury unanimously finds 12 people—beyond a reasonable doubt—that this was an effort to convey a serious threat of unlawful violence.
Sargent: Right. And we should point out here that Todd Blanche, the acting attorney general, is now auditioning for the permanent AG slot, and Trump fired his predecessor, Pam Bondi, because she failed to prosecute and jail enough of Trump’s enemies. And she failed at that—guess why? Because the facts and the law didn’t permit it. The whole reason Trump wants Blanche in there instead is because he will not be constrained by facts and law, correct?
McQuade: Yeah, I think that’s right. I mean, it’s obviously a little bit of speculation on our part, but it really seems that, you know, there’s a vacancy. Blanche as the acting attorney general no doubt wants the permanent role. If the reason Pam Bondi lost her job is that Trump thought she was not aggressive enough, then guess what Todd Blanche decides he needs to do.
Donald Trump has long yearned for his Roy Cohn. Roy Cohn, of course, was the lawyer who represented him in housing discrimination cases against the Department of Justice in the 1970s. He was a lawyer to the mafia, represented many members of crime families in the 1980s. He was also one of Joseph McCarthy’s lead counsel during the Red Scare. He was someone known to play hardball politics, a tenacious, take-no-prisoners style of litigation. And Donald Trump wants that in an attorney general.
But let me say that is not the way the Justice Department has traditionally conducted itself. That’s the way maybe lawyers in private practice conduct themselves. They will very zealously advocate for their client because that is who they represent. And that’s fine when it comes to private practice. But when you are a lawyer for the government, you have a higher calling.
Your job is to see that justice is done. And a prosecutor should not bring a case under the DOJ’s principles of federal prosecution unless it is probable that they can obtain and sustain a conviction based on admissible evidence. And here, I think it’s completely far-fetched to think that that standard could be met.
You can certainly make a person’s life miserable by indicting them. They’ve got to undertake the expense of hiring a lawyer. There’s stress on them and their family. It’s disruptive of their lives. It can harm their reputation. All of those kinds of things will happen to Jim Comey, even if he ultimately is exonerated at trial, which is what I fully expect to happen.
Sargent: Well, let’s switch to Jimmy Kimmel for a sec. Trump is in a fury at Kimmel because he did a routine where he played the role of MC at the White House Correspondents’ Dinner. He didn’t actually show up at the White House Correspondents’ Dinner. This was a couple days before—he was acting out the role of MC at it.
And then, as if Melania Trump were sitting in the audience, he joked, “Mrs. Trump, you have a glow like an expectant widow.” Now, of course, the alleged assassination attempt happened a couple days later. Trump is now demanding his firing. Barb, this is just standard-issue standup ribbing. How is this real?
McQuade: Yeah, and we also have now Brendan Carr deciding to review the license of ABC—their broadcast license. He is, of course, the chair of the FCC, and it’s not the first time he has suggested that he could mess around with licenses as an effort to rein in Jimmy Kimmel, right?
I mean, Jimmy Kimmel made a joke—not a particularly funny one—but about the reaction of the administration to the assassination of Charlie Kirk, talking about how members of the White House and politicians were trying to exploit that death. At the time there were statements made by Brendan Carr.
Remember he said something like, we could do this the easy way or the hard way. Talk about mafia talk. And so, you know, this is a really powerful power that Brendan Carr has as the keeper of licenses for the broadcast media, whether it’s television or radio. And if he is to take those things away, that could be meaningful. And so could he use that power to influence the content of what is aired over ABC? And it seems like that’s exactly what he’s doing. I don’t like what you say about my boss or his wife—I have the power to take away your voice.
Sargent: Well, basically that’s exactly it. Trump exploded at Jimmy Kimmel on Truth Social. This is after the assassination attempt. He recounted Kimmel’s routine and said this: “A day later, a lunatic tried entering the ballroom of the White House Correspondents’ Dinner loaded up with a shotgun, handgun, and many knives. He was there for a very obvious and sinister reason. I appreciate that so many people are incensed by Kimmel’s despicable call to violence and normally would not be responsive to anything that he said, but this is something far beyond the pale. Kimmel should be immediately fired by Disney and ABC.”
It’s so shameless, you almost can’t get your head around it. He’s seizing on the shooting to retrofit the claim about Kimmel to accuse him of incitement. That’s beyond absurd, but Barb, seriously—could you rule out, would you be prepared to rule out DOJ trying to prosecute Kimmel for incitement as a result of this?
McQuade: Well, there’s what they should do and what they might do. Under no normal administration would you expect there to be any sort of charge of incitement. But in light of the fact that we’ve seen Todd Blanche now bring charges against Jim Comey, the Southern Poverty Law Center—there was the effort to indict the members of Congress for making that video about providing lawful advice to members of the military that they have a right to refuse an unlawful order. They’re investigating Jerome Powell.
All of these things suggest that they will take the slightest kernel of a potential crime and turn it into a full-fledged indictment. Because back to this whole name-and-shame theory—they don’t much care if they can obtain a conviction, contrary to those DOJ norms and the ethics of most state bars, for the standards for criminal prosecutors.
Sargent: So Barb, here’s what’s mysterious to me, and I think still somewhat unanswered for a lot of ordinary people paying attention to this. Is it legal for Todd Blanche to say, I know that this prosecution is not supported by facts or law, but I’m going to bring it anyway because Trump wants me to, or because Trump will fire me if I don’t, or because I’m auditioning for the job of permanent attorney general. What are the constraints on that? Can he do that?
McQuade: Well, can he—I suppose, yes. May he do it permissibly—no. DOJ lawyers are constrained by two things. One is the principles of federal prosecution, which say partisan politics may never factor into a charging decision and a prosecutor should bring a case only if they believe that the evidence makes it probable that they will obtain and sustain a conviction.
That means a trial jury will convict them, and on appeal your legal theory is sound and it will be affirmed. Of course, no case is a slam dunk, but you have to believe it’s probable that that will happen. The scenario you described falls short of that standard.
Sargent: Is there a good-faith constraint? Like does Todd Blanche have to operate in good faith?
McQuade: Yes, absolutely. That’s what that norm is designed to create—that a prosecutor before they bring a case has to believe that this is a winner, that, you know, I may be wrong in the end. It may be that the jury sees things differently than I do. It may be that my witnesses don’t testify exactly the way I expected them to, but based on what I’ve looked at, I fully believe that it is probable that I will obtain a conviction at trial and that it will be upheld on appeal. That’s DOJ policy.
In addition, there’s a very similar ethics rule in most states about this good-faith requirement—that the prosecutor believes that this case will result in a conviction. And the reason for that, Greg, makes perfect sense, doesn’t it? We don’t want prosecutors running around bringing charges against people that they think are going to fail, for the reasons we already discussed—it’s a very big burden on a person’s liberty to be charged, even in an indictment, even if they’re not convicted.
And so that balance between public safety and individual liberty requires prosecutors to bring cases only when they believe they have evidence sufficient to prove the case. It may even be, I believe you’re guilty, but I don’t think I have the evidence. Even that’s not good enough. I have to not only believe you’re guilty, but believe I can prove it with admissible evidence. And so if Todd Blanche doesn’t believe in this case—and it’s really hard to believe he does—then that is not acting in compliance with DOJ’s own principles or with the ethics rules of most state bars.
Sargent: Well, is there any kind of prospect for accountability later for either Todd Blanche or some of the lower prosecutors doing his bidding or anybody else involved? Is there a way Democrats could be getting out there and saying, you know what, guys, maybe you shouldn’t be doing this because you’re going to be held accountable for any breaches and any abuses later. Is there a way to say that?
McQuade: Yes, I think so. You know, in terms of any sort of criminal accountability, they all know that Donald Trump has the ability to pardon them on his last day of office. And it seems likely, as long as they stay in his good graces, that that will happen. But that’s not the only remedy, of course. There is the potential for civil lawsuits for money damages.
Ordinarily, there is a great deal of immunity that protects prosecutors who operate in good faith in the scope of their duties. But if you operate in bad faith, there could be an exception for that. And I think the thing that’s most likely to provide accountability for people like Todd Blanche is their bar license. Todd Blanche is still a young enough man that I’m sure he envisions practicing law after he has completed his term as attorney general, or at least acting attorney general. And to be disbarred would prevent that. John Eastman was just disbarred from the State Bar of California for his role in the January 6th, 2021 effort to steal an election. And so I think that is something that could be held over the head of Todd Blanche.
At the moment he doesn’t seem to much care. It seems that so many of these Trump operatives act as if this is the last administration that’s ever going to be there and they’re going to keep winning elections. Maybe they know something I don’t know, but I think what goes around comes around and that they should be very fearful of losing their licenses to practice law.
Sargent: I would agree. So I understand that these types of actions against James Comey will cost them in legal fees and they’ll suffer harassment, as you mentioned, and I’m not minimizing these abuses—they’re horrific. However, there is a high likelihood of backfires, right? Because we all know that in midterms, the GOP absolutely has to get out some of these low-propensity Trump/MAGA voters, low-engagement voters. This stuff with Comey and Kimmel is supposed to accomplish that. But I just don’t see it.
If and when these things fail, they could have the opposite effect, dampening enthusiasm, right? It’s the great Trump failing. Well, conversely, it all further energizes the Democrat-aligned, high-engagement voters who do turn out in midterms. And also underscoring that Trump is not at all focused on real people’s regular daily concerns. Is there a high likelihood of this backfiring?
McQuade: I don’t know about the political ramifications, but I do think there’s a high probability of it backfiring legally. And that could bring some of the political fallout you describe. But I don’t see how they get a conviction of James Comey. And I think this case will—if it goes to trial—result in an acquittal for James Comey. And, you bet, he’ll be out there all over social media bragging about how he took on Trump and defeated him.
I think the other likelihood that we will see is a successful motion to dismiss the case on both First Amendment grounds, as we discussed earlier, and also on the grounds of selective prosecution. Now, this is a defense that rarely prevails because what you have to show is not only that I was impermissibly targeted, but that other people who are similarly situated were not charged with the same crime. And it’s often impossible to prove that second prong, right? How do you prove that somebody else committed the same crime and was not prosecuted? It’s like the dog that didn’t bark. How do you prove that thing? But it’s really easy in this case—just go on Amazon today and you will find all kinds of people selling T-shirts and hats and bumper stickers that say 86-47.
You know what else they’ve been out there selling for years? 86-46. Do you think anybody in this administration thought to charge anybody for threatening to kill Joe Biden? Nope, they sure didn’t. And so I think that it will be very easy for James Comey’s lawyers to point to those non-prosecutions to say this is selective prosecution. So one way or the other, Jim Comey is going to win this case. And he still has some respect across the political aisle. He’s, after all, a Republican. He was appointed by George W. Bush to be a U.S. attorney and the deputy attorney general. And so I think he’s got a lot of respect in law enforcement circles. And so I think this one—you know, when you overreach, there is always that risk that it backfires on you. And I think this could be one of those.
Sargent: Right. I think it draws a ton of attention to yet another failure on Trump’s part, which will, if anything, turn off MAGA. And simultaneously, it reminds normie voters of the reason they want to check on this lunatic. Barb, just to close out—your book, aptly titled, The Fix: Saving America from the Corruption of a Mob-Style Government. What do we need to do to save ourselves from this?
McQuade: Yeah, so thanks very much. I’ve got this book coming out June 2nd, The Fix, and, you know, it compares the Trump administration to the mob. I talk about some of the cases that I prosecuted in my career as a prosecutor, some of the lessons learned there about how you deal with corrupt politicians, how you deal with extortionists and other things. But also offering some real solutions about how we can build guardrails around some of what are currently just norms, to help protect us from the next Donald Trump that might come down the road.
Sargent: Well, it sounds like it’s going to be a great read. I’m looking forward to it. Barb, thanks so much for coming on with us, folks. Check out the book—The Fix: Saving America from the Corruption of a Mob-Style Government. Barb McQuade, thanks so much for coming on.
McQuade: Thank you, Greg.