The following is a lightly edited transcript of the October 25 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.
In an interview on Thursday, Donald Trump seethed with anger at Jack Smith and confirmed that if he’s elected president, he’ll fire Smith from the role of special counsel in “two seconds.” That’s bad enough, but at the same time, Trump also enthused that the Supreme Court had given him immunity from criminal prosecution. He said this as a boast. We think this neatly reveals something about Trump’s intentions for a second term: he really does think that if he wins, he will be able to function as president with something like absolute impunity, totally unaccountable to any laws. Today, we’re talking about all this with former federal prosecutor Barbara McQuade. She’s going to walk us through what would actually happen if and when a newly elected President Trump fired Jack Smith and what he could do as a totally unshackled president. Great to have you back on, Barbara.
Barbara McQuade: Thanks, Greg. Great to be with you.
Sargent: Trump was talking to one of his favorite interviewers, Hugh Hewitt, and at different points, Trump unloaded on Smith in all kinds of ways. He ranted that Smith is a scoundrel, a mean and very dishonest man. Trump complained about agents searching Mar-a-Lago. Trump insisted that Smith had lost all the federal cases against him or was in the process of losing them. And perhaps most important of all was this exchange.
Hugh Hewitt (audio voiceover): You’re either going to have to pardon yourself or you’re have to fire Jack Smith. Which one will you do?
Donald Trump (audio voiceover): It’s so easy. It’s so easy. That guy’s a crooked person. We got immunity at the Supreme Court. It’s so easy. I would fire him within two seconds.
Sargent: Barbara, this confirms that if Trump wins, he’ll cancel ongoing federal prosecutions of himself, which we should remember are for very serious alleged crimes, including ones related to a violent insurrection and the theft of important national security secrets. What’s your immediate reaction to all this?
McQuade: My immediate reaction is I’m not surprised that Donald Trump would say that or that he would follow through and do that. But it really is a breathtaking statement. Since the Watergate era, we have had these norms at the Department of Justice that enable an attorney general to appoint a special counsel when a president or some cabinet official is under investigation to protect the independence of the Department of Justice and the public confidence in the Department of Justice. Of course, so much has changed since that time. Even in Trump’s first administration in 2016, he had to endure a special counsel investigating whether he had committed crimes. But Trump now will be prepared to completely destroy those norms by ordering his attorney general to fire Jack Smith or simply doing it himself. As the chief executive of the executive branch, he does have the authority to do that.
After Watergate, presidents abided by those norms to preserve that independence, but Donald Trump has made it clear he has no interest in that whatsoever. And so he will absolutely follow through on that threat, which means that we no longer have a separation between the Department of Justice and the White House, which has existed in a very formal structure since the 1970s.
Sargent: I want to home in on what Trump said about immunity in this interview. In the context of suggesting he’d cancel prosecutions of himself if elected president, Trump said, “We got immunity at the Supreme Court.” What he’s referring to is: In the January 6 case, the Supreme Court ruled that Trump has immunity from prosecution for certain types of official acts as president. The courts are still sorting out how that will apply to his alleged insurrection-related crimes, which arguably were official acts. But Barbara, what I hear there is that he thinks he’s got blanket immunity in a second term. What do you make of those comments?
McQuade: Well, to some extent he does, because of the court’s ruling that a president is immune from criminal prosecution for official acts within their core constitutional duties. Of course, there’s that middle layer where official acts that are not within a president’s core constitutional duties are presumptively immune, but that can be rebutted by a prosecutor. And then personal acts, which are not official duties, which are not immune from prosecution. But he’s actually right here. If he were to fire Jack Smith, that would be within his official conduct, and, I would suggest, within his core constitutional duties. The Supreme Court said all of that alleged activity that Donald Trump was charged with relating to the Justice Department—of sending out a letter to Georgia and directing them to reconvene their legislature to select a new slate of electors—all of that scheming was off the table in an indictment because his directives to the Department of Justice are all official conduct within that core constitutional conduct.
Sargent: Barbara, can you walk us through what exactly would unfold if Trump just fired Jack Smith on day one and nixed the prosecutions of himself? What would happen within the Department of Justice? What would happen to the cases against him? Would there be any recourse?
McQuade: If he were to fire Jack Smith, instead of investigating him for obstruction of justice, as Robert Mueller did when he tried to interfere with the investigation about Russian influence in the 2016 election, this time around he would be immune from criminal investigation or criminal prosecution for obstructing justice with that case. Really the only recourse that is left for that kind of conduct is impeachment. But as we saw in the last last two times around, when we have senators who are unwilling to convict a member of their own party in an impeachment proceeding, in some ways it really does allow a president to act with impunity when it comes to criminal conduct. Those are really the only two ways to hold a president accountable, and now they’ve both really been gutted.
Sargent: Yes. We should stress again here that if Trump wins and if Republicans win the Senate—which seems very likely, at least the Senate part, the presidential race is still a toss up—it would be a much more magnified Senate as well. I think the idea that you’d have Republican senators being willing to vote to convict is absolutely fanciful.
McQuade: That’s right. The last time around, we saw that they were unable to get 60 votes, which is required to convict a president in an impeachment. It seems very unlikely that’s going to happen this time. That allows a president to commit these very serious cases of misconduct. Remember in the dissenting opinion in the immunity case, Justice Sotomayor, who was joined by other justices, said that a president could order SEAL Team Six to assassinate his rivals, he could accept a bribe in exchange for a pardon, and those things would be immune. And the majority did not refute it. They say, You rely on a few extreme examples. I’m not worried about that really happening. We’re more worried about a president feeling inhibited from taking bold and fearless action. I want to say to the justices who wrote that, Have you met Donald Trump? Because this time around, I think things could be very different because he will be without those guardrails that were there to rein him in last time.
The fear of a criminal prosecution, that’s gone this time. Aides who pushed back, he’s said he’s learned his lesson about who to put in these sensitive positions: loyalists. He doesn’t need to campaign for a second term in his second term. It is going to be a very different Department of Justice that we see in a second Trump administration.
Sargent: He’s openly and explicitly said that he would use the Department of Justice to target his political enemies as well, without cause.
McQuade: I like to think, as a prosecutor, that there are checks and balances in the system that would prevent people from being convicted and jailed. Independent judges, the grand jury system, which are citizens, were designed to be a buffer between the citizen and the state; the jury system, where a person has to be found guilty beyond a reasonable doubt by a unanimous jury. I hope all of those things would be there. Even if there were people at the Justice Department who would take these illegal orders, maybe with the promise of a pardon, I would hope that the career professionals at the Justice Department would withstand those orders. But if Trump installs loyalists, or people resign, they’re going to be replaced with people who are willing to carry out these orders. Just being investigated for these things can be very burdensome for a person who will find themselves under a cloud of suspicion or have to go through the burdens and expenses of defending themselves in court. It could be a really ugly period in our nation’s history if the Justice Department is abused in this way.
Sargent: We’ve seen this happen in the past, of course. There have been all kinds of historical examples. What would happen within the Department of Justice in terms of resignations, leaks, objections, that type of stuff, if and when he were to fire Jack Smith and cancel those ongoing prosecutions of himself? Would there be an outcry? Would there be resistance? You worked there. What would we expect?
McQuade: I think so. In 2016, we saw people who stayed through the administration, who continued to work at the Justice Department after decades of being career prosecutors ... And in the moment of truth, on January 3, 2020, when Donald Trump wanted to install, as the attorney general, Jeffrey Clark, who was willing to do his bidding—and he had drafted a letter allegedly to the state of Georgia to be used as a proof of concept to try to pressure state legislatures to change the outcome of their election—we saw a number of Justice Department officials, even Trump appointees, threatened to resign. All of the component heads at the Department of Justice, the assistant attorneys general for all the various divisions there, White House counsel threatened to resign, and Trump backed down because of that.
Imagine, in a future administration where he’s not worried about criminal prosecution, he’s not worried about another reelection, and he has learned to put in the key positions people who are loyalists, I think that people will follow through on their threats to resign. And what does that leave? It leaves left people who are willing to go along with these illegal orders. I do worry about who might be left. And if you would say, Hey, I’m going to pardon you, just go ahead and do these things, file these charges, file these indictments. Don’t worry, I’ve got you. I’m going to pardon you for any consequence you might face. And I will reward you for doing my bidding, I would hope that the people who are at the Justice Department now and who have taken their oath to uphold the Constitution would not follow through on those things. But if he hires people who are among his loyalists right now, and that’s how he rewards them, then I worry about how twisted our Department of Justice could become.
Sargent: And it’s good to see that Kamala Harris is now making a very strong case about that likelihood. Let’s flip to the alternate scenario. Isn’t Trump being a bit premature in declaring that Smith is losing or has lost all the cases against him? If Trump doesn’t win the election, which is possible, then he’s very likely to be convicted of crimes after that. Can you walk us through that alternative scenario? What happens if Trump loses? What does the calendar look like? How does it all unfold?
McQuade: Yes. Let’s talk about each of them. There’s the documents case. Currently, the status is that case has been dismissed, but that doesn’t mean Trump has won. The district court judge dismissed the case on a procedural basis, not on the merits of the case, which she found was that the special counsel regulations are unconstitutional. Now that really conflicts with every other court that’s considered this, including the Supreme Court. So I expect that this case is on appeal. It will be decided on appeal and it will be reversed and the charges will be reinstated.
But even if she’s right and the Supreme Court says she’s right and the special counsel regs are unconstitutional for some reason, it doesn’t mean that case is over. What that means is other members of the Justice Department will bring that case, whether it’s lawyers out of the Public Corruption Division in Washington or the National Security Division in Washington or the U.S. Attorney’s Office in Miami. That case is going forward eventually if Donald Trump is not in office. And the evidence is very strong, that he not only withheld documents but obstructed the investigation. So that one will resume. We would see a trial in that case probably sometime in 2025.
The other case, the January 6 election interference case, the Supreme Court had it say and made this decision about immune conduct by a president for official conduct committed in his core constitutional duties. Jack Smith has now filed a very persuasive brief that says, We have pared down our indictment, we have removed those provisions that the Supreme Court has said are immune relating to Donald Trump and his interactions with the Justice Department. But there are still many other acts he took that day in his capacity as a candidate and not as the president. His efforts to persuade legislatures to change their votes, his efforts to choreograph a fake slate of electors, his efforts to use the chaos at the Capitol to persuade members of Congress to block the certification. That’s all coming in.
The one gray area is his interactions with Mike Pence about refusing to certify the election. Jack Smith says that’s in that third category of presumptively immune conduct that’s within the official conduct, but not part of a president’s core constitutional duties—because after all, he’s talking to the vice president in his role as the president of the Senate—and that he believes he can rebut that presumption of immunity so that that conduct is also part of the case. Whether he’s right or wrong there, all that other stuff we just talked about, the other three schemes—pressuring the legislature, the false slates of electors, and using the chaos to persuade Congress—that is all coming in. None of that is going to be immune, and that case will go to trial again probably sometime in 2025. And that part of the case remains very strong.
Sargent: This brings up something that really disturbs me about all this. I don’t think the media has adequately covered it. The fact that he will cancel prosecutions of himself is a standalone alarming story in its own right. It’s almost always mentioned in passing and in coverage of the cases more broadly. The result is that voters don’t really know that one thing that’s on the ballot in this election is whether Trump will be allowed to place himself above the law for extremely serious crimes against the country. Can you talk about why that’s important in and of itself? It’s bad for the rule of law if a president can simply order the Justice Department to drop criminal prosecutions against him for serious crimes, isn’t it?
McQuade: It’s such a good point, and I do agree with you that it gets glossed over because what people say is, Well, of course, if Donald Trump is elected, he will dismiss the cases against himself, and then there’s a roll of the eyes and then move on. It is important to pause for just a minute to think about how profound that really is. That’s never happened in the history of our country where a president says, I am going to order the Justice Department to stop an indicted case against me. And these cases ... For sure, the documents case are about Donald Trump in his personal capacity. All the conduct alleged in the documents case occurred when he was out of office in 2017 when he was a private citizen. There’s no immunity for any of that. It is really simply saying to the Justice Department, I order you to stop the case against me.
In the January 6 case, we have to work this out through the courts about what is and is not protected immune conduct, but I’m very confident that at least some of that conduct is private conduct as candidate Trump, not President Trump, [and] should see the light of day in a jury trial. But again, if elected, he will pull the plug on that whole case. The rule of law says that all of us are equal before the law, that no president is above the law. What the Supreme Court said in the immunity case is in regards to his official conduct, a president has to make decisions that could put him in the crosshairs of a political prosecution, and so we want to carve out those official acts for immunity. But everything else is fair game. That’s not what is happening here. A second President Trump would say, Even for my private acts, I am going to pull the plug on these criminal cases. That is a very starkly different world we would live in than we live in today.
Sargent: Just to make this even darker, Barbara, here’s another thing that’s so disturbing: Trump is running for president on the idea that January 6, his attempt to seize power illegitimately by corrupting many government officials and then via mob violence, was actually good. None of those crimes ever happened in his telling. The January 6 rioters were patriots and heroes who were motivated by a good cause because 2020 was stolen from him. If he wins the election, in a sense, he makes all that true. He pardons the January 6 attackers so their crimes never happened. He pardons himself so his own crimes never happened. And then he and the Republican party just replace all of it with a historical lie. They succeeded in rewriting the entire story. What do we do then, Barbara?
McQuade: Think about what happened on January 6, pardoning those 1,200 criminal defendants who beat and assaulted police officers, destroyed property, tried to use brute force to block the peaceful transfer of presidential power ... all of that would be rewritten. I remember something that William Barr once said that I find really quite chilling. He was asked a question about his own legacy and his involvement with some of the more sordid aspects of the Trump presidency, and what he said was, History is written by the winners. That’s a really disturbing thought when you think about a possible second term by Donald Trump. I’d like to think that history is written by those of us who witnessed the truth. And if Donald Trump is allowed to have a second term, I worry that those alternate truths will be what history remembers.
Sargent: Unfortunately, that actually seems like a very real possibility. And God, if that doesn’t get people out to vote, I don’t know what will. Barb McQuade, thanks so much for coming on with us today.
McQuade: Thanks for having me, Greg.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.