NTK: McQuade: Saving America from a Mob-Style Government

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“This is Deep State Radio, coming to you direct from our super secret studio in the third sub-basement of the Ministry of Snark in Washington, D.C.”

and from other undisclosed locations across America and around the world. Hello and welcome to Need to Know. I am David Rothkuff your host and today as every time we join you here, I need to know. We're going to talk to somebody who we think is a newsmaker full of insight who can help you understand what's going on in the world today. But today is a special occasion because we're joined by a friend, Barbara McCoy, professor of practice at the University of Michigan Law School, also a legal analyst for NBC News and MSNBC and co-host of the sisters in law podcasts.

But today is a special day because today for Barb, her new book is coming out called The Fix, saving America from the corruption of a mob style government, congratulations, Barb. Thanks very much, David. Great to be with you today on publication day. It's publication, I'm excited. I mean, you've been through this before you're writing books like at a rapid clip at the moment. Every moment I see there seems to be a new bar for Quakebook. Well, it's only my second book, but I am excited because I want to share these ideas with the world. I don't know that I can change the world, but I can at least I hope open some hearts and minds to help explain what's happening at this moment and also offer up some suggestions for how to fix some of the problems that we're seeing in our government today.

“Well, let's start with that because I think that's also where your process of writing the books started from what I've read from what I know of you.”

And that is this idea of a mob style government. I have to say, your timing's pretty good because the entire debate around the so-called slush fund and the president trying to give himself and his family lifetime tax immunity. Really triggered a lot and a lot of people and they were like, wait a minute, this isn't just weird or overreaching this is criminal. So to tell us about how you got here and how you're timing ended up being so good. You know, when I first thought about this parallel, I thought it was a unique insight, but over the many months since I started working on the book, right at the beginning of Trump's second administration, I think it has become very obvious to all of us how the president is operating.

And so it really began, you may recall, one of the first things that happened when President Trump took office was the dismissal of the Eric Adams case. This was the bribery case against the former mayor of New York for accepting money in exchange for doing favors for the government of Turkey. And we saw this pressure by some of the officials at Trump's brand new DOJ on the interim US attorney in the Southern District of New York, a Trump appointee herself, Daniel says soon, to dismiss this case in exchange for getting Eric Adams to go along with the Trump administration's preferred methods of immigration enforcement.

And having prosecuted as a federal prosecutor, cases against corrupt public officials and organized crime enterprises, this looked very familiar, this kind of tactic.

“And there were some resignations over that. And then we saw the use of executive orders to go after law firms and universities and frivolous lawsuits to go after members of the media.”

You really reminded me of the tactics that we see from these organized crime characters, which is to inflict pain on your target, someone who is a rival source of power. And then use that pain that pinch to coerce them to come to the table to negotiate their own punishment. And one of the things I learned in prosecuting these kinds of cases is that people are often tempted to pay off the extorter because they want the pain to go away. They think if I just pay them, this one time everything will be okay.

And of course, the lesson really is just the opposite. Once you pay the extorter, you are now beholden to them. You can't complain to anybody because to do so would be to admit your own complicity.

And now they own you and they can control you. And so I wanted to share some of those lessons that I learned as a prosecutor of those cases with our country and readers to help them understand what it is we're seeing and how we can defeat it. Obviously, one of the distinctions between seeing this and a mob family or criminal and seeing this in a president is that president's carry with them the air of legitimacy. They carry, you know, the Department of Justice works for Donald Trump and thanks to Supreme Court ruling a couple years ago.

Does so entirely on his terms. And so for the first time ever, if he says I want to use extortion or I'm going to use this to punish my enemies or whatever, it comes with this kind of impromotor of being not outside illegal system. But part of our legal system, our legal system itself, you want to pardon, you got to pay off the president. You want to regulatory change, you got to pay off the president. You run a foul with the president beware. You can use all the tools available to the US government to punish you. And that's not, you know, it's not like, oh yeah, there's this case. It's every case. It's literally every development we see these days.

And so in that respect, it's it's it's different in tone and and in an impact from something that that happens outside of in contrary to our legal system. Yeah, one of the things the president Trump has done that is so different is to do all of these things in broad daylight. And it reminds me of someone like John Gotti who walked around in expensive suits and silk ties and said everybody knows what I'm doing. I dare you to stop me. It is part of what feeds into this feeling of invincibility and of hopelessness and helplessness for the rest of us.

“You know, I think of the words that just as Sonia sort of my yard wrote in her descent in the Trump view United States case in 2024. And she talked about, you know, imagine a future for president is immune from criminal prosecution.”

We could see, you know, a president demanding that Seal team six assassinate his political rival or that he accepts bribes in exchange for partens. And she said under the majority's reasoning. All of that is immune from prosecution.

And the majority responded to that chief justice robbers to say, oh, you're engaging in a whole lot of hyperbole this is what never happened.

Well, welcome to 2026, Chief Justice Roberts, because we are seeing some of those kinds of things that just as Sonia may or imagined even back then. But, you know, one of the things that I think gets lost in all of this, you know, Todd blanched the acting attorney general is fond of reaching into his jacket pocket and pulling out his pocket constitution and leading the reading the one provision that says the executive power shall be vested in a president of the United States. To suggest the president gets to anything he wants. There's of course also the other clause in article two that says the president shall take care that the laws be faithfully executed.

“And I think that's the part that counterpart that sometimes gets lost when Todd blanch is reading the constitution.”

There are remedies for all of this. Congress has been mostly dormant, but seems to be finding their spine a little bit these days speaking out, for example, against.

But they do have the power of the purse. They have the power to defund some of his pet programs like immigration enforcement or even to rescind funds that go to the judgment fund that they're going to use for that fund.

“So we have tools to counteract all the moves of a president who wants to use his power to advance his own interests. We can't be afraid to use them.”

One of the things that's always struck me about this unitary executive idea, which is manifest in these public displays of constitution reading from Tom Blanch, is that the constitution is quite explicit that while there is executive power, it is offset by congressional power and as well as the power of the judiciary.

And that these things do exist to balance one another. And in fact, that was the reason the constitution was written in the first place.

That was the, you know, I mean, if you look at the Declaration of Independence as perhaps we might do, given that this is the 250th Anniversary year of its writing, there are 27 grievances at it, grievances, which they consider to be abuses of power by the king. And if you go down that list of 27 grievances, you'll find that the majority of them, some people even said all of them, I think it's a stretch, but the majority of them are grievances that we could have with this president, because of the overreaching, how much of that do you lay at the foot of the court and how much of that you lay at the foot of Trump?

“Well, I think both have some, honestly, hands and all of this, but you're absolutely right about the founders, you know, we were fleeing a monarchy.”

We declared our independence and started a revolution against a monarchy, and the last thing we wanted to do was to create a leader who had the powers of a king.

We used that idea of separation of powers of dividing power among the three separate and co-equal branches of government in an effort to be able to have an effective government, but one that could check each other. So, you know, you need somebody to execute the laws. That's for sure, but the laws are supposed to be created by the Congress and interpreted by the courts. And so, I do think that the immunity decision has thrown our balance a little bit out of whack and has given the president perhaps more power than the founders intended.

“But the president himself, I think, needs to act, there's a presumption that he will act with some humility, just because you can do something, doesn't mean you should do something.”

You know, the founding fathers talked a lot about virtue and about, you know, not using maximal power just because you can.

And so, perhaps that's where Congress comes in in being more aggressive in their powers of oversight, funding, and even impeachment when a president overreaches. One of the things that I think has happened in the 250 years since that time is the growth of political parties, some of the founders refer to them as factions as if they would be a bad thing. I don't know if they're a good thing or bad thing, but they certainly are the thing we have today, but instead of a separation of powers, we seem to instead have a separation of parties where the president's party is not willing to cry foul when the president goes astray.

We did have that as recently as Watergate where President Nixon's own party told him it was time to go. I don't know that we have that today when the parties are so fiercely divided. But I have been heartened a bit just in the last few days by the words of some members of Congress, including Senator John Thune, the Senate Majority Leader, who has said he hopes that President Trump resins his slush fund on his own. He thinks it's a bad idea. Mitch McConnell saying it's morally wrong. He's not running again, so maybe it's easy for him to say, but one hopes that the independence of Congress can be restored so that it can be the true third branch of government that the founders intended.

But frankly, they're cherry picking his crimes. They're saying, well, this is too far, but you know, launching a bunch of tariffs against the laws too far, selling partens is too far, telling the oil industry that if you give me a billion dollars and donations, I'll give you the regulations you want is too far.

And you know, this does go back to your your notion about parties because something happened, you know, when the founders were writing about factions and the federalist papers.

The idea was that there would be multiple factions as in, for example, the parliament, the British parliament that they were familiar with, but over time, we had two political parties that created a system of a duopoly where it becomes impossible to challenge either one of them. And that in turn, deepens the institutional defensiveness of either party and that in turn gets you to the point where we are today, where the Republican party has been enabling. In almost all of these areas, you know, they're one or two now where there seem to be some issues, they're a little concerned about the Iran war, you know, but which is an illegal war, right, but but but but most of the case, they're not doing that.

And I'm just wondering, you know, how how one counteracts that particularly in environment where the Supreme Court has said that the president has immune it.

“Yeah, I think strength and Congress is a very important thing for us to focus on to improve the functioning of our government. And I think there's some ways we can do that.”

As you say, it has become so polarized where we've got extreme views on the left and the right, making up these political parties that it would be. I think beneficial to have a moderating effect, and there are things that we can do to achieve that, for example, ranked choice voting is something that they have in Alaska and a few other places that brings us. The officials like Lisa Murkowski, the moderate Republican senator, when you have ranked choice voting in theory, you can avoid having that splintering effect where to moderate candidates split the vote of the normies and some extremist, you know candidate can come in and capture just enough of the vote to win a seat.

And so ranked choice voting, I think is something that we should focus on.

The very Mandarin is another thing that I would point out as a former New Yorker at a New Yorker in my heart, particularly as the next or entering the playoffs. That ranked choice voting got us Eric Adams too. So, you know, it's it's. Yeah, well, you know, maybe it makes it makes it make it make it make it make it make it. I suppose I suppose it didn't say we did out corruption, I suppose.

“I think Gerry Mandarin is another thing that's terrible for democracy.”

And in the middle of this, Gerry Mandarin arms raise and Democrats are doing it because Republicans did it. And if you don't then you're bringing a knife to a gunfight, all of those metaphors, but I think all of it is terrible. One of the opinions that I find most persuasive is the dissenting opinion. The Salina Kagan wrote in the Rucho case that said political Gerry Mandarin is a political question that courts cannot disrupt that Gerry Mandarin is antithetical to democracy. It puts a thumb on the scales for one party over the other and is unfair to voters.

“I think what we could do is what has been done in my home state of Michigan and some others, which is to create independent citizens based.”

redistricting commissions who don't favor one party or the other. They include representatives from both parties plus independence and they create district lines with things like keeping city and county lines intact. Making them of equal size roughly equal shape, respecting boundaries like rivers and lakes and other kinds of things. Finding people who have a community of interest and keeping them together rather than cracking them as we've seen in Memphis where the African American community of Memphis is now been cracked into three separate voting districts so that none of them have a majority in any one of those districts.

I think that's a way to restore true democracy to Congress. And then one other that I think is very interesting is proportional representation. This is a possibility that has been floated by political scientists that says rather than having one member of Congress in our district where so many are entrenched by party that we have very few districts ever in play in any election.

Perhaps my district is 60% Democratic and so we consistently vote her into office instead of our five representatives maybe three of them are Democrats but two of them are Republicans.

That way everybody gets their voice heard and it could have a moderating effect to even create more parties in the ends that you've got far left far right and maybe a party or two in between. I think we have a moderating effect. So I think if we were to focus on improving the way we elect our members of Congress, we might be able to rebalance the equation the way the founders intended it.

“And I think that's why we're going to vote for the party. And I think that's why we're going to vote for the party.”

So how the chances of the party are going to be as high as possible. So let's have a party in the revamp. Just at 18.7. Well of course one of the, when I think about what's happened here, you think about the Trump VHS decision, you'd think about the Shelby County and the voting rights decisions, but the one that the average American who is not conversant in Supreme Court decisions will cite what asked what's unfair is citizens united. Which leads me to ask you what do you think we ought to be doing about campaign finance reform.

I agree. I think it's a mess and it becomes more acute every cycle when we see how many millions of dollars are pushed into campaigns. It allows a select few members of society to control the outcome of elections. And of course, it didn't start with citizens united. It goes back to Buckley V. Volale in the 1970s.

When Congress first passed the federal election campaign act following watergate with a whole package of bills to reform government and good government.

And that's when the court said any of these limitations on expenditures are unconstitutional. And at the time what they did was to equate spending with speech. Free speech means that we get to spend as much as we want on campaigns and you can't stop us from doing that.

“I think that was just profoundly long. As you know, David, even though the first amendment says Congress shall pass in a law,”

restricting the freedom of speech, we do it all the time.

And the courts allow us to restrict every right is long as the restriction is aimed at a compelling governmental interest and it's narrowly tailored to achieve that interest.

So when citizens united came along and the courts sort of doubled down on this theory, I thought they got it exactly wrong. But what can we do about it? I think because citizens united is Supreme Court precedent. We either need a constitutional amendment to change it. Senator Jean Shaheen has proposed one to write it out of the law. I think that would be a very healthy thing for our society. It is difficult, however, to do that. You know, I look at the, what Republicans began to do in the 1970s when they went after rovers is weighed.

It took them 50 years, but they eventually got the case overturned.

“And maybe that's what it takes, finding judges and building a bench so that someday the Supreme Court will recognize that the compelling interest”

in buckly viva lao and citizens united wasn't about money in speech. It was about voter equality because by allowing money to equal speech, what they did is to sideline the equal value of a vote of people who don't have that kind of money. Some other inter-mediate things that can be done, we're seeing now in several states. There's a proposal in my state of Michigan, but we've already seen it happen in Montana and a proposal in Hawaii. And that is to change corporate laws to say corporations as a structure may not make political contributions.

It's one way to counter-excitizens united, but it won't stop people like Elon Musk from having an unfair advantage over the rest of us. And that's why I think we need either a constitutional amendment or a long-term effort to overturn citizens united.

And that's not a made up number. That's what that's what's actually happened.

And so the result is that as you say, they get a much bigger say in everything. But a lot of what we're talking about here is structural reform and structural reform actually begins with big hard steps. And then one, which is constitutional amendment. But of course, there are other ways to do structural reform that the Congress can do. And a couple that are on the plate right now include restructuring the court so that you go from say nine seats to 13 seats, which corresponds to the number of circuits.

And so fourth and is consistent with American history, not that it has to be, but that there is a certain degree consistency there.

And embracing new states into the union, the district of Columbia, Puerto Rico, etc.

In order to offset some of the disproportionate power that some of the less populist states have, which by the way, they got as a result of heavy handed back room political dealing in the 19th century. You know, it's why they're too decoders and so forth. And that's another thing that can be done. How do you feel about this kind of big structural reform as a priority for this country?

And do you think the average American can understand it, get behind it, and not see it as, you know, more hanky panky like jury member? I do.

“I think education of the public is essential to helping people understand.”

But I think there are, I'm not sure there are very many Americans who would disagree that our, our government structure is kind of broken. And so some solutions to try to make it work better. That would be welcome. Some of the things that you've mentioned, I think our welcome, another one that I think could be very valuable is the interstate popular vote compact. A number of states have already signed on to this.

It needs only five more states to sign on until it's effective. And that is a way to offset the electoral college. In recent elections, we have seen the winner of the popular vote.

“I believe the electoral vote, which seems very odd in today's day and age that we can have people in smaller states control the outcome of our elections.”

But this compact would say that if you, the, the winner of the popular vote gets all of the states electoral votes regardless of the way the voters in that state voted. And so that would essentially award the election to the winner of the popular vote. I think that's something that could pick up some steam. But I think all of these things are worth consideration to make our country more fair.

You know, one of the things that happened in my home state of Michigan, when we did adopt the citizens independent redistricting plan is for the first time in 40 years.

The office of governor, the house and the senate in the state of Michigan went democratic for the first time in 40 years. It truly reflected the will of the people and so when you get rid of all of these things like gerrymandering and all of these contraptions that were designed to entrench certain people in power. You do have an empowering effect on democracy and I think all of those things are good. Yeah, I also the majority population in Michigan and everywhere else, which is to say women ended up getting those jobs.

Michigan became a woman run state to it's great benefit and has produced a number of great leaders as a consequence.

“Well, let me in in the sort of final round here, what do we do about all of this go back to your roots as a prosecutor?”

Because, you know, you can do all of these things, but if somebody in charge is criminally inclined, they are going to be able to use the law in ways that's damaging to the United States. And so the question becomes what do you do about it? And my question, this regard touches on two sets of remedies. One is the Supreme Court's immunity decision. You and I've actually talked about this in the past.

The immunity decision grants the president immunity for official acts. But there are certain acts that the president has undertaken, which are explicitly illegal acts. There are two of the arguments clauses to just pick an example, but there are a bunch of other acts taking a bribe is an illegal act or, you know, we could pay mothers.

So there must be some latitude within that decision to actually go after a president who violates the law.

The second half is that the Constitution is very explicit.

That in the case of senior officials, there is one way that they can't use the law to protect themselves and that's impeachment. And we treat impeachment as though we're, you know, a tool rarely to be used. Well, these are unusual circumstances. But there's a debate in the Democratic Party. Oh my god, you shouldn't even use the word impeachment.

Personally, I'll just tell you, I personally am not averse to it because I know that in 2019 the president was impeached in 2020 lost the election.

So there could conceivably be some benefit to bringing facts out about cases, even if the president is not convicted in the impeachment process. But I'm just wondering what your view is on on both of these approaches. As you as a prosecutor, how do you hold Trump and people around him accountable?

“Yeah, so first I think accountability is very important.”

When you think about the trials at Nuremberg, so important for setting the record straight and educating the public about what happened in Nazi Germany and making sure there's accountability. So that people understand that when you engage in such profound wrongs, there will be consequences. I think we made the mistake of pardoning Richard Nixon and, you know, Gerald Ford is the hometown hero from my state of Michigan. But I think he made a grave mistake when he pardon Richard Nixon because I think it opened the floodgates for what we're seeing today.

But both of those things, I think, Jack Smith's prosecution can be resuscitated at the end of the Trump administration.

“And I think it should be, remember, he superseded his indictment following the Supreme Court's immunity decision to focus only on those acts that he argued were done in the president's personal capacity as opposed to his official capacity.”

So he took out all of the misconduct involving directives to the Department of Justice and focused instead on Trump's activity as a candidate for office, not in his capacity as president. I think there's a strong argument that the statute of limitations should be told during the time the president was serving an office because of that view that a sitting president cannot be prosecuted. And I think Jack Smith or a successor ought to be able to pick up right where he left off and resume that prosecution.

So that's one way to hold a president accountable. The other, as you said, his impeachment, you know, if you are only going to impeach a president without any likelihood of a conviction by the Senate, I suppose it feels like you're just going through the motions. But I do think there is value in just as we saw at Nuremberg and accounting for the record so that the public can understand what happened.

“I think the same thing that was useful was the House Select Committee on the attack of January 6th of 2021.”

It's important that a record be made of what has happened here. And I think an impeachment proceeding could do that whether it's about this 1776 fund or other amendments is a very explicit violation of the Constitution. I think that an impeachment process can create a public record that will preserve for history the misconduct of a president. Yeah, I agree with you and I'm really glad that you underscored this point of accountability because there there's squeamishness about that in some parts. And in my view, unless you hold people accountable, you can't solve these problems and these problems.

And up becoming kitchen table problems, the kind that all politicians think are important because if there is a corrupt process or giving the few, the most benefits of society, it hurts everybody else. And so these things are all connected. It's why I think your book is so important, so timely. Congratulations on the book. I'm sure people have many opportunities to see you out there promoting it and I encourage people if they get a chance to go and see you in person. To go and do that, but the book is called the fix saving America from the corruption of a mob style government barbeque is one of the leading experts on these issues in the country.

And she writes with great clarity and I think it's a book everybody needs to have at this particular moment because I think we're dealing with things we've never had to deal with before.

And we hope to talk to you again soon. And for everybody else out there, we'll be following these issues each and every week.

“And hope you'll join us for that then. Until next time. Bye bye.”

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