Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Barb McQuade:

What they really want to do is destroy the whole concept of truth, that there really is no such thing as truth, truth is unknowable, truth is for suckers. So what you really ought to believe is whichever side shares your values.

Preet Bharara:

That’s my friend Barb McQuade. She’s the former U.S. Attorney for the Eastern District of Michigan, and now is a law professor at the University of Michigan Law School. She’s also a legal analyst for NBC News and MSNBC, and our very own CAFE contributor where she writes a monthly column, Note from Barb. She’s out with a new book called Attack From Within: How Disinformation is Sabotaging America. In it, she chronicles and dissects this very urgent issue in American politics, from the lies that led to January 6th to the ways people unwittingly spread false information every day. We talk about how disinformation got to be so bad, the ways polarization feeds lies, and the nature of truth itself. We also discussed some recent legal news in the very busy world of the Trump trials. That’s coming up. Stay tuned.

Q&A

Now, let’s get to your questions. This question comes in an email from Marvin who asks about something that’s been in the news quite a bit this week. “What do you make of District Attorney Alvin Bragg’s request for a gag order in the Manhattan case?” So that’s a great question, and I will tell you that my initial observation that I’ve been thinking about all week has been this. In so many instances when it comes to Donald Trump and his trials and tribulations, whether it’s the fact that he was impeached twice, his four criminal cases against him, he makes these sweeping claims of absolute immunity in various cases that, again and again and again, we say we’re dealing with something we’ve never dealt with before, it’s an unprecedented situation. It’s a case of first impression.

So the first time that someone mentioned and suggested a gag order in a criminal case or a civil case for a former sitting president of the United States, the question was, well, how do you do that with respect to somebody who has had the highest seat of power in the country and who’s on the campaign trail and has First Amendment rights? We’d never encountered this before because we’d never encountered this kind of conduct before, but now with the numerosity of civil and criminal cases swirling around Donald Trump, there’s been a little bit of a playbook. So things that were unprecedented before now have precedent, now sometimes have multiple precedents.

So here, as Alvin Bragg in his office have asked for a narrow and tailored gag order against Donald Trump, there are multiple precedents. Most notably, of course, in the DC District Court pending trial relating to the January 6th insurrection, there was a judge there, Judge Chutkan, who approved a narrow gag order. So Alvin Bragg in his office have hued pretty closely to what was sought there. So he has the imprimatur of a federal district court judge whose ruling is not binding on the Manhattan judge but persuasive, and not only the imprimatur of a district court judge, but also the affirmance of that gag order or a version of that gag order by the DC Circuit Court of Appeals, arguably the second most important court in the whole United States of America.

So I think the gag order makes sense. The gag order is fairly narrow. It’s a little bit odd that in the motion for the gag order, many, many, many of the exhibits make the point that the DA himself, Alvin Bragg, has been subjected to harassment and threats and potential violence based on some of the commentary being made by Donald Trump. However, Alvin Bragg exempts himself from the gag order, so Trump is free to attack and criticize Alvin Bragg, but not the staff at the DA’s office, not the court staff, and not the jurors.

One could reasonably ask a question about the timing of the requested gag order. After all in the DC case before Judge Chutkan, a case that was filed after the Manhattan case, a case that is still far away from trial or at least farther away from trial than the Manhattan case where a gag order was sought, a gag order was approved, that gag order was appealed, and that gag order or a version of it was affirmed by the Circuit Court, all of that happened before the Manhattan DA’s office sought a gag order in the first instance.

Now, it may be the case that when you have an imminent trial date that focuses the mind, and with jury selection only a month away, it makes sense to seek the gag order, but I think people could credibly wonder why it wasn’t sought before, given that one of the things the gag order seeks to prevent is Donald Trump’s attacks on potential witnesses in the case, and Trump has had, as you may be aware, a field day attacking someone who will be one of the most notable witnesses in the Manhattan trial, his former lawyer Michael Cohen. So I think given precedent that we have now, the gag order is right and proper if a little bit tardy.

This question comes in an email from Jess who asks, “Preet, what happens now that the House impeached Secretary Mayorkas? Does the Senate have to hold a trial?” Well, that’s a great question. Obviously, you’re talking about Secretary of Homeland Security, Ale Mayorkas, who’s been impeached by the House Republicans by a very, very narrow vote. They failed on the first vote, they got it on the second vote, I think by a margin of one vote. Not to get in the weeds here because you asked a procedural question, but it relates to the alleged inaction or bad actions taken by the secretary with respect to the crisis at the border.

I should note for folks that this is the first impeachment of a cabinet secretary since literally the centennial of the country, 1876. I won’t bore you here, maybe I’ll bore you later with my views about the adequacy and propriety and merit of these articles of impeachment, but suffice to say, I don’t think they’re very meritorious. I think lots and lots of people on both sides of the aisle think it’s a distraction, it’s a political stunt. They’re not meritorious. Multiple Republicans have said and have indicated they don’t believe this is wise, they don’t believe it’s appropriate, and it sets a bad precedent.

Now, so you ask a good question, but before I answer the question, I’ll say it’s a foregone conclusion that the thing that’s not going to happen is that Ale Mayorkas will be convicted in the Senate. You may recall from the impeachments of Donald Trump that if and when the Senate takes up a trial after having been delivered articles of impeachment from the House, conviction requires a two-thirds vote in favor of conviction. The Senate, I should remind you, is controlled by Democrats and is fairly evenly divided. You’re not going to get a two-thirds vote, so it’s a little bit of an academic exercise, whatever process is followed ultimately.

Now, this is what the Constitution Article 1 Section 3 says about the Senate’s role in impeachment. “The Senate shall have the sole power to try all impeachments.” That does not say, in the estimation of most experts, that upon receipt of articles of impeachment, the Senate is required to hold a trial or, more importantly perhaps, is required to hold a trial in any particular way with any particular methods, with any particular rules, with any particular form.

It is the expectation, as has been the case historically, that the Senate will take up an impeachment. That’s the expectation, that’s the political expectation, that’s the precedent, generally speaking, so it probably will, but as I pointed out a moment ago, and you’ll remember from the debates about Senate rules and procedures in prior impeachments, including the Clinton impeachment and trial and the two Trump impeachments and trials, the Constitution doesn’t really say anything about the time that needs to be spent on such a trial, the format, witnesses, the rules of evidence or the lack of rules of evidence.

There’s a great article in Just Security, which sets out the various ways that the Senate could possibly, arguably, avoid a trial. They could have a proceeding early on where they engage in a motion to dismiss process, the kind of thing we’ve been talking about in the Trump criminal trials. There’s an argument in favor of doing something that was tried by one of the Republican senators in one of the Trump impeachments that failed to raise a point of order or I guess there’s speculation that the Senate could appoint a special committee to deal with the impeachment short of having a regular trial.

My expectation is, knowing the Senate, knowing the precedents, and knowing the Senate majority leader, my former boss, Chuck Schumer, there’ll be some proceeding, probably an abbreviated proceeding, probably a fairly short proceeding with not a lot of fanfare that pretty summarily deals with the articles of impeachment. It’ll probably be called a trial, but as I’ve noted elsewhere over the years, a Senate impeachment trial is nothing like an actual criminal trial or civil trial in one of the courts of the United States.

One thing that’ll be interesting to watch for is whether people, lawyers, and other kinds of experts change their tune in this proceeding as compared to how they thought about proceeding to trial with respect to the Trump impeachments, particularly the second impeachment and trial which took place after Donald Trump left office. Back then, there were some Republicans who said the Senate did not have to proceed to trial even after receiving articles of impeachment, and there was people on the other side of the aisle who said, “No, there’s a duty and an obligation to proceed to trial.”

Sometimes you see in political events of the last number of years, people flip sides on those things, but I do think at the end of the day, we’ll see if this is borne out, there’ll be a trial, it’ll be short, it’ll not be notable, and it’ll result in the acquittal of Secretary Mayorkas.

I’ll be right back with my conversation with Barb McQuade.

THE INTERVIEW

Disinformation is a serious threat to American National Security. Former U.S. Attorney Barbara McQuade digs into this complicated issue in her new book.

Barbara McQuade, welcome back to the show, my friend.

Barb McQuade:

Thanks, Preet. I am so thrilled to be with you. You are very kind to invite me on.

Preet Bharara:

Well, it’s a great book. Congratulations on its completion. It’s an important subject that deserves a lot of attention. It’s called Attack From Within: How Disinformation is Sabotaging America. So let me start with the first question that I’m sure you’ve been getting a lot. Aside from the importance of the topic, why’d you pick this topic and how bleak is it?

Barb McQuade:

Well, as you know, Preet, my background as an AUSA, Assistant U.S. Attorney, was as a national security prosecutor. So I’ve been interested in threats to national security throughout my whole career, and I now teach at Michigan Law School, of course, on national security law. So in my time working in national security, I’ve seen the threat evolve from Al-Qaeda to ISIS, to cyber, to Russia, to disinformation coming from within our own country.

In 2017, I started teaching this national security course, and in probably about 2018, I started teaching the Mueller report as part of the national security class on disinformation. Then it was about Russian disinformation, about some of the things that he learned in his investigation about the influence campaigns that Russia was engaging in, using social media, buying ads, adopting false personas to push people toward one candidate away from another and to sow division in society.

Now, we’re seeing these tactics being used by Americans, by the MAGA right, by those who are seeking power in our country. So I find the topic absolutely fascinating. I’ve done a lot of reading in this space, and I think it is a threat and it is very bleak. I think that we are living in a time when people care more about tribe than about truth. So some people fall for disinformation, but others are willing to go along with the con to advance their own political, personal or profit agenda, and that’s what makes it bleak.

Now, I do try and include some proposed solutions in the book, so there are-

Preet Bharara:

You do. Are we going to get through those?

Barb McQuade:

There is hope. There is hope, Preet. It’s not all bleak.

Preet Bharara:

You say you teach the Mueller report. Do students read the entire report or do they just read Bill Barr’s summary?

Barb McQuade:

Yes.

Preet Bharara:

I’m trying to give some ideas for people to save some time for your class.

Barb McQuade:

No, this is about truth, Preet, not about disinformation, but accurate information, so excerpts from the report, from the actual words of Robert Mueller.

Preet Bharara:

Do you have a class devoted to the misinformation of redaction?

Barb McQuade:

Yeah, and so we’re seeing so much of that right now, aren’t we, with what’s going on with the Smirnov indictment and about how his reporting was used for the basis of the Biden impeachment inquiry and has now been exposed as disinformation. So there’s an awful lot of it floating around.

Preet Bharara:

So can we start with another basic question? What is disinformation and what about this other term that people throw around misinformation? Does it matter? Is there a distinction? How should we think about those terms?

Barb McQuade:

I think plenty of people have different interpretations. I define them in the book, and for me, the way I define them is disinformation is the deliberate use of false information for the purpose of deception. Information is facts, dis is to dismiss to discredit. So I use disinformation as the deliberate use of lies to deceive people. Misinformation, as I define it, is the unwitting spreading of disinformation. So plenty of people read something online, they assume it to be true, and they pass it on. I think all of us have likely been, what some people refer to as useful idiots or unwitting dupes from time to time with misinformation. I’ll tell you a story of a time when I was a purveyor of misinformation myself. I’m a football fan.

Preet Bharara:

You do have the right to remain silent.

Barb McQuade:

Well, I read something online that said, “Patrick Mahomes was refusing to play another down for the Kansas City Chiefs until they changed their name to something that was not offensive to Native Americans.” I thought, “Wow, what a story.” I retweeted it immediately, Preet, because that was big news, and then later in the day I was-

Preet Bharara:

It doesn’t sound crazy.

Barb McQuade:

It doesn’t sound crazy, it sounds plausible. Later in the day, I was discussing it with my husband and son and said, “Did you see this story?” and they said, “No, didn’t see that at all. You sure that’s true? I haven’t seen that anywhere. It seems like that would be big news.” I thought about it and I said, “Yeah, it does seem like that would be big news. Let me go back and look at the original source.” I looked at it, I was like, “It’s ESPN. It sounds legit.” Oh, and I looked a little more closely and I saw that the account said Sprot Center, not Sports Center, and I realized I had been duped. So I quickly removed it, but it just shows you how easy it is for us to get excited about something, for us to see a headline and pass on false information. So that’s my definition of misinformation, false claims that we unwittingly share with others.

Preet Bharara:

I was going to ask you in a little bit for some tips to provide average people who scroll through their Twitter feeds or watch the news or hear things from their neighbors and how to tell which things have the industrial truthfulness. So one, you’ve already mentioned and I learned not quite that in that quite a hard way, but I learned that if you see a report and you don’t see it anywhere else, much less from a reputable, and we can get into what reputable means these days, mainstream media screw things up too, and we’re both part of that. So that’s one, folks. If you see something that’s super interesting and you only see it in one place, be careful about that.

Why do you think this problem, as you recite in your book, has gotten worse? You acknowledge that this has been around, the problem of disinformation, since ancient times, but why the big deal now? Is it technology? Is it something else about our psychology? Is it something else about our politics? What is it?

Barb McQuade:

I think it’s two things. I think one is the technology. We now have the ability to spread disinformation with the press of a button. Propaganda has been around for centuries, as you say, but there was a time when it required word of mouth or distribution of leaflets or planting a story in some newspaper and hoping some other newspaper picks it up, and it might take years to plant a false story. Now, you can see something outrageous, post it online and people will pick it up and spread it. We’ve got anonymous users and bots and all kinds of things that can make things look genuine and pass it on.

I think what it really exacerbates it, Preet, is this willingness to go along with the con. I think it is because we live in such polarized times. There is a great book by Ezra Klein called Why We Are So Polarized, and I cite it in my book and it talks about the strategy that came along around the time of George W. Bush and Karl Rove that decided we don’t want to preach to the middle. The middle isn’t really what gets us votes anymore. What we really want to do is attract turnout from the base at the far left or right of our party.

So what we need to do is really gin up outrage and we need to sow division and we need to portray the other side as demons as so awful that to choose their side is completely untenable. When we see that, we now have many people who will choose tribe over truth. So even if we don’t really believe something, we see a snarky comment that favors our side or makes fun of Joe Biden, what do they love to say? Let’s go Brandon, whatever it is, will just pile on there because that signals our membership in our tribe, in our team, and we care more about that than we care about truth or that we care about solving problems.

Just look at what’s going on in immigration right now. There is a serious challenge at our borders and we need serious people to take a clear-eyed look at what’s going on there and to compromise and figure out a good solution, but instead, we would rather portray our opponents as either hating all Brown people or, on the other side, wanting to open the floodgates to everyone who wants to come in because they want to replace White people or something absurd like that.

Of course, to really advance American society and human progress, we need to compromise, but instead, what gets votes and what gets people excited and what gets people to the polls is to get them very angry and outraged and afraid of what the other side might do. So I think that is what drives the desire for disinformation.

Preet Bharara:

Here’s another way you, I think, put that precise point in your book, and I thought it’s very striking on this question of why we have so much acceptance of disinformation and peddling of disinformation. You write, quote, “A significant number of Americans don’t seem to care anymore whether a statement is true. What seems to matter instead is whether any given message is consistent with their worldview,” end quote. I’ve been saying for some time in a parallel way on a separate issue, nobody cares about hypocrisy anymore. It used to be that if you said one thing one year and the next year you had a different view, whether it’s on abortion or affirmative action or trade or taxes or anything else, you’d be sussed out as a hypocrite without credibility.

My observation is that’s been less and less, and what people care about is not whether you had some different view earlier, but, “Do you have my view today?” It’s not hypocrisy, it’s not truth that people care about. It’s, “Do you agree with me? Are you in my tribe?” Is that fair?

Barb McQuade:

That’s absolutely the point I make. I think that people spend a lot of effort virtue signaling to other members of the tribe to just show how much I am a member, what a loyal member I am on the Republican side, on the far right. One of those signals is to refer to their opponents as members of the Democrat party. For a long time, that was a pet peeve of mine. I’m like, “Why do they say that Democrat party, they know better, right? Are they stupid? Do they think that’s insulting in some way?” The answer is, and I researched this, was what they’re trying to do is signal that, “I am a member of the far right and my team is what’s most important to me, and that team is the enemy, and I am going to say these things just to irk them,” and it attracts others who are members of that far right team.

It is such an important point because it is all about tribe and it’s not about policy. Ask yourself, what policy does Donald Trump stand for today? The Republican party platform of 2020 was we will support the presidency of Donald Trump. There are no issues anymore. It’s all about what side are you on and the other side is the enemy. So we see people who engage in disinformation to divide and conquer and to make other people’s scapegoats because if there is so bad, then you need to be on my team.

Preet Bharara:

Do you take a page from what Garry Kasparov has said and other people who study propaganda have said to correct the impression that some people have about disinformation, and some people think, “Well, they want to put out the idea that my side is correct, your side is false,” and that may be some of it, but according to Garry Kasparov, and he’s applying these theories and these observations mostly to Russia and obviously the former Soviet Union, but the bigger project is making people just not believe there is any truth or there is any correct side, and that’s a greater victory for bad forces and for misinformation than simply trying to prove that someone else is wrong.

In the process, if you show that no one can be trusted and that everything is a lie or everything is a problem, then you’ve really won because then all people are left with is adherence to the views that they already subscribed to and then they do the thing that we’ve been talking about. They choose to believe the thing that they want to believe because what else is there?

Barb McQuade:

I absolutely agree with that. That’s a checkmate by Garry Kasparov. I agree with that. In fact, I read a few books by an author named Peter Pomerantsev, who is a Russian journalist, who has studied Russian propaganda similar points, and also Ben Rhodes, who was a former deputy national security advisor to President Obama, who has spent a lot of time thinking about governments around the world. They both make that same point, which is this idea that what they really want to do is destroy the whole concept of truth, that there really is no such thing as truth, truth is unknowable, truth is for suckers.

So what you really ought to believe is whichever side shares your values. Everybody’s corrupt. Sure, Trump might be corrupt, but Biden’s corrupt too. Everybody’s corrupt. So if all you care about is honor and integrity and truth, well, then you’re a chump because what really matters in this world is what’s best for you and getting ahead and you can disregard all of this truth.

One of the things Peter Pomerantsev have talks about is the fog of unknowability. In Russia, one of the things we see is even a lack of consistency. So Putin will say things one day it was a Russian missile that struck Ukraine, on the next day they might say it was a Ukrainian missile that struck Ukraine, and another day they might say it was a NATO missile that struck Ukraine. Which is it? It doesn’t matter because the whole point is to get people to say, “Shrug. I don’t know. There is no such thing as truth.: Sometimes people call this the liar’s dividend, “Fake. That’s fake news.” You can dismiss everything as fake news if there’s something that is inconvenient for your side.

Ultimately, what happens to the population and what has happened in Russia is, at first, people get angry with these conflicting views, and then at some point, they become cynical, “Yeah, you can’t believe anybody,” and then finally, they become numb and they disengage from political life and they say, “You know what? I can’t keep track of all that’s going on there, and so I’m just going to focus on my job, my family, my little life here, and I’m not going to worry about politics.” In a democracy, that is a recipe for disaster because to govern ourselves, of course, we need truth and we need to agree on what the facts are.

Preet Bharara:

I want to ask you about a very small example or a somewhat small example of whether it’s misinformation or disinformation or gaslighting or something else. It’s in this primary contest between Donald Trump and Nikki Haley. Donald Trump goes out to the podium with a microphone and says obnoxiously, “Where is Nikki Haley’s husband on the campaign trail?” insinuating that either there’s a marital issue or he doesn’t believe in the candidacy or something, which is remarkable for a number of reasons. One of which is, as Nikki Haley has capitalized on in fairness and understandably, that her husband is serving, I think, in the international guard across the globe and he’s serving our country.

So Donald Trump’s comments are worse than obnoxious to me. The other point of it is, “Where’s Melania?” How does a guy, and maybe this is not quite in the heartland of what you’re writing about here but I think it’s adjacent to it, how do people buy the words of a guy who says about another candidate, “Where the hell is your spouse?” insinuating something nefarious when his spouse is nowhere to be found and the other person’s spouse is serving the country?

Barb McQuade:

Again, I think that it goes back to this idea that Peter Pomerantsev says in Russia, “Consistency doesn’t matter, hypocrisy doesn’t matter. It’s about destroying the truth.” It’s really just about finding ways to pile on and to criticize her and to attract people to your team. I also think there’s some sexism going on there that what kind of woman doesn’t have a husband by her side, the ambitious woman who doesn’t have a family, but you’ll see all kinds of things like that from Donald Trump. Referring to the January 6th defendants who are jailed and imprisoned because of assaulting police officers as hostages, he recently posted something about preserving presidential immunity, which, of course, creates this impression that it’s something that’s already there that Jack Smith is trying to take away or did you see the one that he posted about Alexei Navalny about, “The death of Alexei Navalny makes me think a lot about what’s going on in our country and Joe Biden.”

Preet Bharara:

Let me ask you another question. When did common sense and basic intelligence stop being an antidote to disinformation? So it’s one thing, as you mentioned a few minutes ago, to be credulous and believe for a moment that Patrick Mahomes has a certain view about the name of his football team. That’s not crazy, but some of the conspiracy theories that are taking hold with some subsets of the population are totally bonkers. Let’s talk for a moment, I know you’ve opined on it, the Taylor Swift conspiracy theory. Remind people what that is, and then I have a question about how we’ve morphed into a region where even the most insane, completely insulting types of conspiracy theories take hold.

Barb McQuade:

So the conspiracy theory is that Taylor Swift and Travis Kelsey are all part of a psyop, a psychological operation, that her popularity, and I don’t know how deep they think this goes, but her popularity as a pop star has been propped up by the deep state. Travis Kelsey’s success in the NFL has been propped up by the deep state. The Kansas City Chief’s appearance in the Super Bowl has been foreordained by the deep state, and they would win the Super Bowl and we would see Travis Kelsey and Taylor Swift together after the game as we did, embracing, and then at some point, Taylor Swift would endorse Joe Biden because all of this, all of their success has been a product of the deep state.

Preet Bharara:

So can you explain to me, Dr. McQuade, how people buy such nonsense? Because for that to be true, there would have to be the most sensational, organized secret conspiracy with many, many, many, many people, including the NFL owners, players, and everyone else in on the conspiracy but no evidence of it.

Barb McQuade:

Well, that just shows how sinister it is, Preet.

Preet Bharara:

It’s just an extreme version of people want to believe what they want to. Look, we can go to the pizza place child pedophilia conspiracy theory. There are people in Qanon who continue to believe, I think, that John F. Kennedy, Jr. is going to reappear or he is not dead or he will reappear from the dead and run as a Republican as a running mate of Donald Trump. I guess in a world or at least in a country where people will believe those things, believing in the Taylor Swift conspiracy is not maybe as nuts.

Barb McQuade:

I have a couple thoughts on that. So one is I’m sure there are some people who actually believe this. Conspiracy theories work because we are wired to try to detect patterns in facts, in our observations. So in ancient times, we observed that there were storm clouds gathering and that would signal to us that a storm is coming and we better pack up our things and head inside to the cave. We are wired to look at patterns and draw conclusions from that.

So some people are more susceptible than others. If you don’t have a lot of contact with the outside world and you read these things and maybe you have a little paranoia, maybe all of these things start to make sense, but I also think, Preet, that there is a large segment of the population and those who drive these theories who are engaging in something called reflexive control.

I learned about reflexive control from our friend Asha Rangappa, who, of course, writes a wonderful note for the CAFE team, and also as a former FBI counterintelligence agent, I have come speak to my class about this concept of reflexive control, and I’ve read a lot about it. That is if I say something, I know that it is going to cause you to behave in a certain way. It’s the same thing like we use reverse psychology on our children, “Whatever you do, don’t eat those peas,” and suddenly it makes them want to eat the peas, but that’s it.

Preet Bharara:

That never worked on me. I shunned the peas no matter what.

Barb McQuade:

All right. Well, it didn’t work on you, but reflexive control, I think, some of it is, and we see this from time to time, is putting something out there because we know others will take the bait. So this conspiracy goes out, we know the mainstream media will pick up on it. I think one thought is, the hope is that Taylor Swift will read this and say, “Boy, the last thing I want to do is to fulfill any stupid conspiracy theory that I’m part of a psyop, so I’m just going to stay out of it altogether.” So in that way, they have neutralized her from their greatest fear, which is to endorse Joe Biden. She does have incredible influence, and so they want to stop that. So how do you stop it? By saying, “Oh, it’s a psyop that she’s going to do it.”

I think there are some people out there who are pushing this theory because they want to control her and control the media and prevent her from either endorsing Joe Biden or if she does endorse Joe Biden, saying, “See, it’s just a psyop. They’re just trying to manipulate you.”

Preet Bharara:

Is one problem here, and maybe we never had this and we long for a past that never existed, but is one problem here that there are fewer and fewer neutral, respected, trustworthy sources that we can say, “Okay. Well, if they say this is true, then I believe it,” and that we just have an absence of that consensus trustworthy source.

Barb McQuade:

I think that as America has become more polarized, as we said in the past 30 years or so, I think the news media has adjusted to appeal to those preferences. So we do have Fox News appealing maybe more to the right. I think we have seen news outlets like the New York Times, The Washington Post, MSNBC reflect more of a progressive viewpoint, although I don’t think that those outlets engage in disinformation, but I do think that they perhaps have a more progressive view in their editorial pages or in their news judgment of what has news value.

So I think consequently, everything that pushes people toward more polar extremes exacerbates itself and builds on itself. I know there are people … I try to talk to people on the right and the left. I occasionally watch Fox News until I can’t stand it anymore, which doesn’t last long. I try to watch the BBC to look at the social media feeds of people on the right to see what they are saying, but I know in talking to people on the right, they believe that the New York Times or CNN or The Washington Post are mouthpieces for the left, and they do not have faith that they provide accurate information.

Preet Bharara:

Yeah, but what’s interesting about that is there are many, many people on the left that think the New York Times is a mouthpiece for the right.

Barb McQuade:

Yeah, that’s right.

Preet Bharara:

They probably think The Times, I know many excellent, wonderful reporters at The Times and they appear on the podcast from time to time, their probably philosophy or principle a little bit is, “If both sides are mad at us, maybe we’re doing something correct.”

Barb McQuade:

I do think that in the days of Donald Trump, there is a thought out there that we have to do everything we can to defeat him, that there is an ends justifies the means philosophy when it comes to defeating Donald Trump, and likewise, I think there is an ends justifies the means on the right, that Joe Biden is part of the radical leftist woke agenda that is ruining America. So my team in defeating that agenda is more important than the niceties of accurate facts.

Preet Bharara:

I’ll be right back with Barb McQuade after this.

When I was thinking about your book and reading your book and thinking about these issues, I was remembering a different context in which I often found it difficult to find the most reliable sources, and that’s when I worked as a staffer in the US Senate on the Judiciary Committee. From time to time, there would be a bill that was unclear whether it was as good as the advocates for the bill said it was or as bad as the opponents of the bill said it was. I would, as a staffer, attempt as best as I could to do my due diligence and I would have … Let’s say it was a progressive leaning bill about housing or equal rights or whatever the case may be. I would have in the people who want to come and talk about the bill, who had an interest in the outcome of the bill’s passage, and I would have advocacy groups who were progressive and very smart and capable people who I liked very much, and they were advocates. They would say, “This bill is great.”

From time to time, I would say, “Well, what’s the principle weakness of the bill or what’s the thing that’s worst about the bill?” Some of the time, these folks didn’t want to concede any weakness in the bill or any bonafide opposition to the bill, which I’ve never heard of any bill that’s perfect, and I would be left wondering, “Well, how can I properly assess the merits of the bill or whether or not Senator Schumer should offer an amendment to the bill or advise them properly?”

Then similarly, I would be open-minded and talk to people who are against the bill and I would say, “Was there anything good about the bill?” and they would say, “There’s nothing good about the bill.” So I was stuck. So unless I could find the paragon of neutrality and someone at remove at a university somewhere to opine on the pros and cons of the bill, I was left to my own common sense, my own devices, my own research, which in some cases was probably okay, but in some cases not. I don’t really have a question there. Does anything about that experience resonate for you as you wrote this book?

Barb McQuade:

Yeah, very much so. Preet, I think one of the problems you and I have is that we grew up as lawyers in a world where truth matters, and we know that our cases will have strengths and will have weaknesses. When a judge asks us, we have a duty of candor to the court, and we also want to have credibility as advocates. So we are trained to concede points from time to time that, “Yes, my argument has weaknesses at point D and point C, but I want to emphasize that points A, B and E are very strong and, therefore, my side should prevail.” That’s what gives you credibility as an advocate. I also think that those people you were talking to did their clients a disservice-

Preet Bharara:

They did.

Barb McQuade:

… by not conceding the points.

Preet Bharara:

They did. Conceding, I write about this in my books. We have an intersecting point of comparison. People who don’t want to concede anything and never want to apologize and never want to retreat from a position even if they overall have the best argument, they have five arguments in their favor, four are quite strong, one is a little bit weaker. Concede that one point is a little bit weaker, you earn credibility and legitimacy there that you can’t buy. You really just can’t.

By the way, when you’re preparing your case, internally at least, you have to be unbelievably, rigidly, and rigorously open-minded about what the arguments are on the other side because that’s what’s going to allow you to hone the arguments in favor of your own side, and we seem not to want to do that anymore.

Barb McQuade:

In fact, I remember we had a visitor here at the law school who was a member of Congress who was on the far right, and our law students are mostly progressive. We have lots of viewpoints here, but I would say our students tend to lean progressive. He gave his talk and then he was asked a number of questions. The district he represents is extremely conservative. It was as if he had never considered these positions before, really obvious questions on gun control and affirmative action and abortion rights and other kinds of things. I had the sense that he lives in a world where he never really has to think about counterarguments, and as a result, he was very ill-prepared to answer questions that seem to have, to me, pretty easy and obvious answers. These are hard issues. There are counterarguments to different things. I was really surprised how unprepared he was, but it’s because he had not been in a world where he had to consider counterarguments and hone his own arguments and response.

Preet Bharara:

So another reason, I think you suggest but you want to be careful about how you say this, that we have a lot of disinformation in this country is we have this very special precious right enshrined in the First Amendment called the right to free speech. Can you explain a little bit how you think about the way that our First Amendment rights, as sacred and wonderful as they are, play a role in this area?

Barb McQuade:

I think it’s one of the things that makes us, ironically in the United States, so vulnerable to disinformation is because of our cherished First Amendment to free speech. I am among the people who will defend that right for anybody. It is incredibly important. It’s what allows us to speak out against our government, to engage in peaceful protest, for minority voices to be heard. So it’s an incredibly important right, but I think that there are those who hide behind First Amendment rights as a shield to cover all kinds of behavior that isn’t necessarily protected by it in the name of censorship.

So for example, when Elon Musk took over Twitter, renamed it X, one of the things he did is to say that, “Social media is like the Town Square. We should be able to say anything we want.” Well, in fact, social media is nothing like the Town Square. That is a square peg in a round hole. In the Town Square, you can see who’s speaking. Online, people can hide behind anonymous accounts. You can be Heart of Texas or Patriot Girl instead of your real name, and your real name might be Vladimir or something out of Russia. In the Town Square, you can see whether people are supporting the message by standing around and clapping or booing or ignoring the person, whatsoever. Online, somebody might be getting likes and shares, but they’re coming from bots that are just AI accounts.

When Elon Musk took over Twitter, he said, “I’m going to put the restoration of Donald Trump’s account up to the vote of the people online and let the people cast their votes.” Well, of course, it might be that Donald Trump, Jr. has 10,000 accounts in various names online and has voted yes. So he counts the votes and he says, “The yays have it. Donald Trump’s account is restored. The people have spoken.” Of course, it’s nothing like a democratic vote where there’s one person, one vote.

So I think that to consider social media, to have all of the same First Amendment protections that we have in rights to free speech is really warped thinking. In fact, as you know, Preet, there are reasonable limits on our First Amendment rights. No right is absolute. As long as a limitation can survive strict scrutiny, then it can be a restriction on a fundamental right. That means that if there is a compelling governmental interest and a limit is narrowly tailored to achieve that interest, then that is compliant with the First Amendment. There’s the old adage, you can’t yell fire in a crowded theater. Reasonable time, place, and manner restrictions are appropriate for those-

Preet Bharara:

People don’t love that example.

Barb McQuade:

Well, it’s a good one. There’s a reason we have it. You don’t get to say anything you want to say everywhere. So I think the idea that social media must remain unrestricted or else it is censorship is just wrongheaded. I think it is a convenient argument for people to use online because they want to be able to say all kinds of outrageous things that threaten others and troll others and harass others.

Preet Bharara:

It seems to me that one of the problems is that one of the fundamental premises of why we cherish and should cherish the First Amendment and free speech is not withstanding the downsides in the existence of hate speech and malicious content that other countries don’t have or police is that from time immemorial in this country we say the answer to and the response to bad speech is more speech. It’s not to restrict speech, it’s to have more speech and better speech so that the good views and the righteous views have an opportunity to flourish and win out.

So you don’t knock off anyone’s right, you don’t turn off anyone’s microphone, and that’s all well and good, and I think is true. I wonder if you agree with the idea that in modern society, more speech is not necessarily the same antidote that it used to be because of our retreat into our tribes and because of how much speech there is due to the availability of technology and the ability of even ordinary people, which in many ways is a good thing but it has a consequence that anybody can have a false and malicious bit of information go viral in social media.

Barb McQuade:

I think the way that I think about it is I generally am a proponent of the idea that the solution to bad speech is better speech, more speech because better ideas will win out, but this idea of the marketplace of ideas gets a little bit warped when we start talking about it on social media, and that’s because of the availability of anonymous speech and bots, which are essentially AI that can amplify messages to make them look more popular than they are.

So I think that this idea that we can’t restrict social media because that censorship is wrongheaded, but I do think that we can use your philosophy of more speech to address these problems through some regulation. For example, if someone says something that is arguably wrong, it’s hard to know what’s patently wrong, patently wrong about voting, “On election day, the polls will be restricted to a few locations and you can vote by texting this number,” that’s just wrong, and it’s designed to steal votes. Perhaps there can be nudges on the social media networks that say, “For accurate information about voting in your area, here is a link to your Secretary of State.” So there is more speech there, but it’s not censorship, it’s providing more information to help rebut false claims, and maybe algorithms can be built into that.

I also think that there are ways to address speech online that doesn’t focus on content, but focuses on the algorithms. Remember, there is that whistleblower, Frances Haugen of Facebook who testified before Congress, and she said, “It’s the algorithm stupid,” reflecting the Bill Clinton line about, “It’s the economy stupid.” It isn’t about the content online, it’s about the algorithms that social media companies use to push you to content that will outrage you because that is what keeps you online. So that’s what ends up filling up your feed is the most outrageous content, and that’s what comes up to the top. Maybe there can be regulation to limit those kinds of algorithms or to at least disclose those kinds of algorithms so that there’s some transparency there.

I also think that prohibiting anonymous accounts online would go a long way. There is a constitutional right to anonymous speech that has been held when it comes to pamphlets and other kinds of things, but I think there could be a distinction made between that and anonymous speech online. Robert Mueller identified these accounts with names like Blacktivist or TEN_GOP, one designed to be a Black activist or to fool people into thinking they were a Black activist, another to fool people into thinking they were the Republican Party of Tennessee. Neither of those were accurate. They were, in fact, Russian operatives in a boiler room somewhere.

The Blacktivist account attracted voters or followers over many, many months, and then as it got close to election day, said to their many followers, “Hillary Clinton doesn’t care about the Black vote. You should stay home.” We’ll never know how many people followed that advice. In the Tennessee GOP account, people followed that thinking that there was grassroots activists in the Republican party and actually went to a rally organized by this Russian operative of TEN_GOP, and including a woman who put on a rubber mask that looked like Hillary Clinton in an orange jumpsuit and wrote in a cage on the back of a flatbed truck with a sign that said, “Hillary for prison in 2016.” So there’s a lot of harm that’s being done through anonymous accounts, and I think that might be one way that we can address some of the harmful disinformation online without regulating content.

Preet Bharara:

Well, what about you’re sitting in your home, your phone rings, and it’s Joe Biden telling you when you should or should not vote. You mentioned AI in passing a few minutes ago. That’s a thing that happened in New Hampshire. So these problems you’re talking about have been with us for a while, but I’m very concerned as are so many other people that you can now pass off misinformation and disinformation so brilliantly through technology, in particular through artificial intelligence, that what hope do we have to combat that disinformation.

Barb McQuade:

It’s a huge problem. The problem of these robocalls that can be stitched together through AI or deep fakes where you could have video of the president or a prominent individual saying things that they never said that could be incredibly harmful and damaging, it’s a real problem. I think our failure to regulate in this space is going to come back to bite us very soon. I think that Congress has really just abandoned its duty to regulate in this space. I think part of it is it’s big business and we have become an international leader when it comes to technology because of the freedom of companies to innovate and invest and do all kinds of great things, and that’s wonderful.

On the other hand, if we allow things to grow without some check, we are going to find ourselves in this kind of situation where we can’t tell truth from fiction, which is, again, going back to what Garry Kasparov said is the goal of disinformers. Is it true or is it fake? Who knows? Everybody’s lying. Everybody’s in on the game, and so you can’t believe anything, so you should just follow the candidate who shares your values, but I think we need to have Congress step up and do something there.

Every once in a while, you’ll see these hearings where Mark Zuckerberg and Jack Dorsey, the founders of Facebook and Twitter, are sitting there at a congressional hearing and they’ll start testifying, and the members of Congress will ask a question prepared by their staffers, and then they get the answer, and they can’t even begin to formulate a followup question. They look like … Have you ever seen those ads, Preet, on TV about the progressive ads, about your becoming your parents?

Preet Bharara:

I have.

Barb McQuade:

Am I hashtagging right now? They hit home a little bit with me because I’m writing that demographic, but the members of Congress start to look like that when they talk back. I wonder, Pret, based on your experience as a congressional staffer, as a lawyer, isn’t there some way to bridge the gap between the tech knowledge, between the social media giants and the members of Congress so that we could get meaningful legislation passed to provide some regulation on AI and social media so that they are not running out of control?

Preet Bharara:

Look, it’s very tough. I have great respect for members of the Senate in particular and the congress in general, but these are tough issues. I’m not excusing or defending or characterizing any particular performance by any particular member, but there’s often a significant gulf between the expertise of a staffer and the expertise of the senator, particularly when it comes to modern technology. Lindsey Graham, whatever you think about him, has boasted repeatedly that he’s never sent an email. I think he’s actually a pretty smart guy, disagree with some of his views and some of the ways he’s practiced politics in recent years, but when you ask the question, can’t we bridge the gap somehow? You have people in Congress who are of an age and of a kind of experience where they’ve never sent the most basic form of … My kids don’t send emails anymore. They think they’re passe. They’re onto several levels beyond communicating in that way.

If you haven’t lived in the technology to some degree, I have this concern, how do you expect them to legislate when they literally have, many of them, not all of them, but many of them no real life experience in the field? So it’s a real problem, but as a segue to talking about what things might help the situation, I guess there’s one issue that cuts both ways. You write in your book that relatedly and adjacent to the First Amendment issue is the relative weakness of our defamation laws consistent with how much emphasis we put on the ability to put out free speech. We have weaker defamation laws than the UK and some other countries, but do you take any comfort from the fact that in recent times we’ve had very substantial and significant defamation verdicts for the people who have been defamed on these questions of conspiracies, including with respect to the voting machine company, Dominion, to the tune of hundreds and millions of dollars against Fox, notwithstanding the relative weakness of the defamation laws? Does that provide you any hope that maybe there’ll be a deterrent effect on conspiracy theory speech?

Barb McQuade:

It really does. There was the, what, $700 million or something that Fox News had to pay to Dominion for lies about flipping votes on their machines from Trump to Biden. Also, the E. Jean Carroll verdict, she was very successful in her defamation case. It actually does give me hope. One thing that frustrates me though is that shortly after Fox made that payout, there was a graphic on Fox News that was depicting Joe Biden, and it was a day that Donald Trump was going to be in court on federal charges, and it described Biden on screen as, “Wannabe dictator charges political opponent.” So I don’t know that they’ve completely learned their lesson.

Preet Bharara:

So you mentioned at the outset that you do have some thoughts. Some of these things to reform the situation or to mitigate or prevent the harm and damage from disinformation are a tough slog. I think one of the things you mentioned is the possibility of amending Section 230. We don’t have a ton of time, but mention a few things that are realistic in our current world that might help the problem.

Barb McQuade:

This is one of those problems that you’re not going to solve with one solution. I think you need multiple solutions. Some of them come from the government level, and some of them come from an individual level. So at the government level, amending Section 230, not to eliminate immunity from lawsuits for social media companies, but maybe to permit some liability for social media companies based on the use of their algorithms to generate outrage or to push people to certain false content, maybe requiring social media companies to nudge people toward accurate information, as I mentioned, toward a Secretary of State, a website or something that is credible when there is something that is not credible that is posted online about voting, requiring disclosure of the source of payment of ads for political ads online. It’s required on television and radio. You’ll hear things like, “I’m Joe Biden and I approve this ad.” There’s nothing like that on social media. It can be funded by Russians or a single individual. So requiring some of those things could help, I think.

Then on the other side of the equation, I think all of us could do more to help build resilience against disinformation, so educating ourselves about how to detect disinformation, and there’s some sources out there that we can use. We talked earlier about checking for second sources. Don’t just read the headline. So often, the headline of a story is not at all reflective of what’s contained in the content of the article. It’s designed to generate clicks. There’s some great websites that can be used to check facts. One is snopes.com, factcheck.org, and politifact.com. There’s also something, Preet, you may have used before called the Congressional Research Service, CRS, that does nonpartisan research on issues coming before Congress. So that’s one thing.

Finally, I would advocate for people to put truth before tribe, to think about before they pile on and say something snarky and say something witty and a zinger online in hopes of generating likes and shares. Asking whether, “If I post this thing or retweet this thing, am I generating more light or more heat?” If it’s simply more heat, then maybe you check yourself and refrain from piling on and joining in that polarizing us versus them mentality that I think is one of the things that motivates all this disinformation.

Preet Bharara:

What’s interesting in this light, and I want to segue for a moment since I have you and you’re a great legal mind who talks about these issues on the public airwaves as I do and as Joyce Vance does, we had this very dramatic hearing in the Georgia criminal case against Donald Trump and a number of others, where the DA Fani Willis has been accused of misconduct because she’s in a romantic relationship with someone who she appointed and various defendants have moved to disqualify her that other special prosecutor and also dismiss the indictment.

So this hearing was held and Fani Willis testified. If you look at the reactions, talk about tribalism, if you’re on the side of the prosecution coming into that hearing, generally speaking, people thought that she had a star turn and she did herself a huge amount of help and people are lauding her performance. Then I saw people who watched the same performance who came into the issue thinking that Trump is being maligned and it’s a witch hunt thought basically that was a disbarring level of performance and she was lying through her teeth, et cetera, et cetera. It’s like Rashomon. This is a little bit different because it’s not about necessarily objective truth, it’s subjective in how someone performed as a witness and their demeanor and their credibility, but do you have any comment on that striking divide over that testimony?

Barb McQuade:

Yeah, and I think some of it is we care more about our tribe than we do about truth, but one of the cognitive factors that I researched and talked about in the book is that we do tend to observe things based on the way we want them to come out. So there are a number of studies that talk about if you’re pro-death penalty or anti-death penalty, and then you read some of the same articles and then they quiz you again and they give you information that’s counter to your viewpoint, when you’re surveyed again, you not only haven’t changed your mind, you hold more firmly to the view that you had before.

There was a study where Trump supporters were shown photos of the inauguration of Donald Trump and Barack Obama and asked which crowd was bigger. The vast majority said the Trump crowd was bigger, even though it’s objectively clear that the Obama crowd is clear. The best personal anecdote I can think about this is, how many times have you been to a live sporting event? I go to a lot of them. I’m at a Michigan football game or I’m at a Detroit Tigers game or something and there’s a close play and the crowd’s groaning because they think the official got the call wrong. Then they show the replay on the screen. Even though it’s objectively clear that the official got it right and your team is in the wrong, people will boo, like, “No, the guy was out at second and our player was out at second,” and everybody’s booing as if it confirmed what they thought to be true.

So I think it’s human nature and I think that those who exploit human nature are preying on those kinds of things that they know we have our instincts to do to manipulate us. I think we need to work hard to resist those things.

Preet Bharara:

So let me, in the few minutes we have left, ask you about some of these pending cases because I’m curious to know what you think about them and I know our listeners are dying to hear what you think about them. This first case coming up, which was, in fairness, the first case that was indicted by Alvin Bragg in the Manhattan DA’s office. I think a lot of people didn’t expect it to be the first one to go to trial. That remains to be seen, but it looks like it. A, do you think this trial date of jury selection beginning on March 25th will hold?

Barb McQuade:

It seems like it will. I don’t see any reason why not. Things happen. As you know, Preet, trial dates are meant to be delayed, people get sick, issues arise, but I don’t know, it seems like the judge is … I don’t know this judge, but based on what I’ve seen, he seems like somebody who runs a pretty tight ship. I always appreciated a judge like that, and it seems that all systems would go. I guess I’d put it at about 80% yes.

Preet Bharara:

I’m sure you won’t answer this question because Joyce never does, but do you have an assessment of the likelihood of conviction in that case?

Barb McQuade:

Also 80%. No, I don’t know. I don’t know. I think a key factor is going to be the extent to which Michael Cohen is a good witness. Interestingly, Judge Engoron, I noticed, in his opinion that he recently issued found Michael Cohen to be a credible witness. So that doesn’t mean he’ll necessarily be a credible witness in this case, but he’s got the same baggage. The same type of cross-examination will occur. It’ll be a jury instead of a judge who maybe falls prey a little more to some of the tactics that defense attorneys can use. I imagine that Alvin Bragg is able to corroborate everything that Michael Cohen says with documents or other witnesses. We’ve got the AMI witnesses and other things.

So my guess is because it’s largely a documents case, it’ll be relatively strong, so I don’t know. Likelihood of conviction, I think a prosecutor ethically is not supposed to bring a case unless they think that it is reasonably likely that they can obtain and sustain a conviction by proving the case beyond a reasonable doubt. So I think Alvin Bragg thinks it’s more than likely, so I’m going to put conviction 60%.

Preet Bharara:

Wow, 60%. That’s like preponderance.

Barb McQuade:

More than preponderance. I could have said 51, but I said 60.

Preet Bharara:

That’s a 9% gap. Let me ask you about another case. The Mar-a-Lago case in federal court in Florida that’s being presided over by Judge Eileen Cannon. Did that have any shot of going before the election?

Barb McQuade:

I don’t think so. I’m not one to pile on her and assume the worst about her, that she’s in the bag for Trump just because Trump appointed her, but I’ll tell you, she doesn’t give me a lot of confidence. First, there’s the whole debacle with the search warrant where she allowed Donald Trump to file a civil suit to challenge that, which is just insane and unheard of, but it does seem that every step of the way she is building in delay. I don’t know if that comes from giving preferential treatment to Trump versus just being a little bit scared of going first and wanting to be ultra careful and making sure that she’s giving everybody their due, but it seems like this one’s on a slow track and so seems unlikely that it’s going to go before the election, especially if the other federal case, the election interference case goes in the summer, there may not just be time on the calendar to get this one in before the election.

Preet Bharara:

Was there a reasonable prospect for a motion to recuse Judge Cannon? Would you have entertained that if your prosecutors came to you and asked for your approval to move to recuse her based on some of her prior rulings or favorable to the defendant?

Barb McQuade:

No, I know that many people think that because of that search warrant issue, she should be recused. I don’t think so. She got it wrong, it’s dead wrong, but I don’t think it necessarily shows-

Preet Bharara:

Getting it wrong is not sufficient.

Barb McQuade:

Yeah, I don’t think so. I think you’d have to show consistent and egregiously wrong before you would recuse somebody, and no, I don’t think we’re there yet.

Preet Bharara:

The issue with her wanting information that would identify witnesses to be able to be put in the docket, do you have a view on that? Now, we’re getting in the weeds.

Barb McQuade:

I’m surprised she’s not more receptive to this idea. She’s a former AUSA herself. I think she should understand the danger to revealing the names of witnesses whose identity is revealed in discovery. Ordinarily, that is not something that is in the public domain. So I find it a little surprising, but, of course, a judge also has to be safeguarding the public interest in public information at trials and the supporting documents are mostly intended to be public and there’s a high burden before you can keep things from the public.

The media has an interest in this information as well and is in there seeking it, but I think she’s wrong just because these are discovery documents, which are ordinarily not public, and the Trump team is trying to make them public by attaching them to motions and saying these need to be public. So I think she’s wrong. I don’t think it’s recusably wrong, if that’s a word, recusably.

Preet Bharara:

Recusably wrong.

Barb McQuade:

Recusably wrong.

Preet Bharara:

Supposebly. Joey on Friends used to say supposebly. Last criminal case, the January 6th case, which a lot of people, myself included, think is the most significant one, the most important one from a law and order perspective and related to the seriousness of the conduct, although all the other cases have serious misconduct at the center of the allegations as well, is that case going? If not, notwithstanding our deep respect for and friendships with many of the people at the top of the Justice Department, if that doesn’t go, is a little bit of the blame to be laid at the feet of the Justice Department that by all accounts didn’t really investigate in earnest the former president and others in connection with January 6th and not until the January 6th committee in Congress began to hit some pay dirt did they get moving on it?

Barb McQuade:

So there’s part of me that wishes the other three cases we just talked about didn’t exist because I think that if everybody were singly focused on this case, we would see it come to fruition. I’m sure Jack Smith’s people have been tied up and distracted with the Mar-a-Lago case as much as this one and should be laser focused on this one, but you can’t ignore serious crimes. So I don’t fault Alvin Bragg or Fani Willis or Jack Smith for charging the case as they did. You can’t ignore the retention of national defense documents. So I don’t fault them and I think they made the right decision to charge. Just in a perfect world, maybe we would be singly focused on the January 6th case because that’s so incredibly important. That case was about an effort to steal our democracy, and if that goes unchecked, I really worry about the future of our country.

I think it’s likely to go. A lot rides on the Supreme Court. They’ve got a number of options here about whether they grant this day, deny this day, summarily affirm the DC Circuit Court of Appeals that found that there is no immunity defense for Donald Trump or go on an expedited grant of [inaudible 01:05:27] and hear the case within the next few months. All of those things could put it on track for a trial this summer and I think it could be completed.

There’s one scenario where the Supreme Court slow walks it and they say, “No, we’re going to let you have your 90 days to file your cert petition and then we’re going to consider it,” and then it gets docketed next fall or something like that. That would be the disaster scenario. If that were to happen, would I fault the Justice Department leadership? I think so, but you don’t know what you don’t know.

I remember when sometimes I was in the midst of investigations that were high profile and for one reason or another the public became aware of it. I was getting a lot of heat like, “Why is it so slow? Charge that case. Everybody knows he’s guilty.” Well, you need evidence. You can’t just go with a TV clip and see, “There it is. He’s urging people to march to the Capitol.” So I don’t know what they were doing during that time. If you’re right, if they weren’t doing anything-

Preet Bharara:

Look, there’s a lot of credible reporting that they were not.

Barb McQuade:

So if you’re right and if they sat around for a year and did not investigate Donald Trump, then yes, shame on them and it is their fault. I don’t know what I don’t know. So I like to think they were at work doing things like getting search warrants on phones and other kinds of things that happen behind the scenes, but I don’t know that. If that’s the case, then shame on them because waiting for the election could really be disastrous because, of course, if Trump is elected, he can make this whole case go away.

Preet Bharara:

I should just note for the listeners that Barb and I are recording this on Thursday, February 22nd. It won’t drop until the 29th, so there may have been some movement between now and when this goes live on the question of where the Supreme Court is, but certainly at this moment, they’re not moving at maximum speed.

Barbara McQuade, my friend, good to have you here. Thanks again. Congratulations on the book. Everyone should get it. It’s very important. It’s called Attack From Within: How Disinformation is Sabotaging America. Good luck on the tour.

Barb McQuade:

Thanks so much, Preet. Thanks for having me on. It’s been fun talking with you.

Preet Bharara:

My conversation with Barb about Trump’s trials continues in the bonus for insiders.

Barb McQuade:

He’s got the receipts for all of this. The amount by which he overvalued Mar-a-Lago, for example, or overvalued his Trump Tower apartment, all of those numbers can be quantified.

Preet Bharara:

To try out the membership for just $1 for one month, head to cafe.com/insider. Again, that’s cafe.com/insider.

BUTTON

About a year ago in March, I ended one of our shows talking about a local celebrity of sorts in my hometown of the city of New York. He had captured the hearts of countless people in the city for his touching example of resilience and hope. I’m talking about Flaco, the owl. He’s the Eurasian eagle owl who was born and raised in captivity at the Central Park Zoo but escaped last February. Zoo staffers ultimately gave up trying to recapture him after observing that he was learning to survive in the wild environment of central Manhattan. He brought people from all over the country to the grasses of Central Park looking for the bird who defied all odds. Improbably, he brought a lot of joy to a lot of people. Flaco was in a way a metaphor for strength and for survival. If he can make it here, he can make it anywhere, and maybe I can too.

Flaco died last week, sadly, after flying into a building near Riverside Park on the Upper West Side. Experts of the Wildlife Conservation Society will conduct a full necropsy to determine if he ingested any kind of rodent poison, which is found all across the city. As the New York Times reported, mourners gathered in the park leaving remembrances for the owl who had inspired them. One person left a letter for Flaco bidding him farewell to eternal flight. Another thanked him for bringing joy to the hearts of everyone who got to witness your magical journey. One woman interviewed by The Times said, quote, “I feel like he was showing us how we can break free out of our cages, the mundane, the things that don’t serve us, the things that hold us back.”

Another New Yorker said Flaco’s story had motivated him to quit his job and start his own company. “Flaco helped me to find freedom,” he told The Times. Some bird experts worried about Flaco’s freedom from the beginning and warned that New York City was no safe place for an owl like him. Nearly a quarter of a million birds die in New York City every year by colliding with buildings. Poison, lead, and illness are a danger for bird species too. It’s a difficult moral dilemma to weigh captivity against safety. That too is a metaphor for our existence, but what we do know is Flaco is more than a bird for many people. He symbolized freedom, grit, perseverance, and he made us feel something about possibility, crazy as that sounds, but in heavy times, that feeling is worth a lot. Rest in peace, Flaco.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Barb McQuade. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on threads or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The audio producer is Nat Weiner, and the CAFE team is Matthew Billy, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.