Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
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.
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?
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 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.
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.
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.
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.
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?
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.
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.
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.
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.
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?
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.
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.”
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.
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?
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.
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.
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.
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.
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.
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?
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.
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?
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.
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