Episode 45 Part 1 of Barbara McQuade
Brian Kruger:
Welcome to the podcast, the Common Bridge with Richard Helppie. Rich is a successful entrepreneur in the technology, health and finance space. He and his wife, Leslie, are also philanthropists with interest in civic and artistic endeavors, but with a primary focus on medically and educationally under-served children. My name is Brian Kruger, and from time to time I’ll be the moderator and host of this podcast.
And welcome to Richard Helppie’s Common Bridge. We’re still remote because of COVID-19. So that means we’re in three different locations. We’re not really in a studio. So go with us on that. Anyway, Rich’s guest this week is Barbara McQuade and we couldn’t be happier to have her here. She’s a fellow Michigander who back in 2013 as US attorney for the Eastern District of Michigan was instrumental in the conviction of then Detroit mayor Kwame Kilpatrick in what was the largest public corruption scandal in US history. And she’s now a law professor at the University of Michigan and among numerous accolades she was awarded the Tribute of Justice Award by the Detroit branch of the NAACP and the Arab American Civil Rights League. She’s also a huge Tiger fan, which is makes her aces with me. This episode is actually very long, so we’ve made it into two parts. You’ll hear the first part now, and the conclusion will be next week. So enough of all that, let’s join Rich and Barbara McQuade’s conversation in progress.
Rich Helppie:
Great, thanks Brian. Barbara McQuade is a regular contributor on MSNBC. She is a professor at the University of Michigan Law School. She is a former United States attorney. Her life story is both inspiring and entertaining coming from the east side, she was a sports reporter and then a federal prosecutor, and ultimately to the role she plays today. Barbara, I also understand that you’re a very avid baseball fan and this can’t be a fun time.
Barbara McQuade:
I love the tigers and I miss watching them and listening to them and reading about them. I know that many people have sacrificed far more things, more important and significant things than baseball, but it’s those diversions that help us get through the harder things in life. So I miss it and I hope it’s back soon.
Rich Helppie:
Indeed, I share that and I want to see the Tigers and the Redwings and the Pistons and the Lions and the Wolverines, and the Spartans-not to leave anybody out here-get back on the field. So after law school, Barb McQuade was a clerk with a federal judge and then with the prestigious law firm, Butzel Long for five years. And Barbara, I think I have this right. You were assistant US attorney for 12 years, and then you were appointed as one of the 93 United States attorneys, this for the Eastern District of Michigan by President Barack Obama, and you were in that job for seven years.
Barbara McQuade:
Yes, that’s right.
Rich Helppie:
And you worked on national security, you worked on public corruption and we are going to talk a little bit about some of the public corruption cases. And I was intrigued when I was reading your background, that you could not leave the US attorney role and go back to becoming an assistant US attorney. There was a reference made to something called anti-burrowing. What’s anti burrowing?
Barbara McQuade:
Yes. So sadly when I left being US attorney, I couldn’t go back to being an assistant US attorney, which is a job I love. But the idea is that if you are appointed into a political position that you shouldn’t be able to then stay on permanently, you are there because you were a political appointee and when you are replaced by a new president who gets to appoint a new political appointee, you can’t stay on as a permanent employee. And so that is something I explored because my situation had been a little different, having been an assistant US attorney before I was US attorney. So I actually called the Executive Office for Assistant US Attorneys on the day after the election in November of 2016 to ask whether those there was any way around those regulations and whether I couldn’t return, even if not to Detroit, then perhaps to the Flint or Bay City offices. They spent a couple of days researching it for me, but the answer was no. And so sadly I had to leave.
Rich Helppie:
Well, it turned out to have a good outcome as you are now a professor for the University of Michigan Law School and regular commentator on MSNBC. And I think it’s really an interesting background as US attorney, I believe your first day on the job, the Underwear Bomber flew into Detroit. That was on Christmas Eve in 2009 and you prosecuted that case. You also put away Farid Fata who misdiagnosed hundreds of cancer patients. And then there was the Takata settlement over the airbags. What role are you playing today with University of Michigan? And how often do you get out on MSNBC? And I know you’ve written some columns for USA Today-what’s your job today?
Barbara McQuade:
Well, I’m a full time professor at the University of Michigan. I have a job known as professor from practice. And so there are about five or six of us who didn’t come up through the academic ranks, but who have been practicing lawyers and are now teaching at the law school. And it’s a nice compliment to those who are research scholars to bring some real world practice to legal education. And I teach criminal law, criminal procedure, and a course called National Security and Civil Liberties. So I spend the bulk of my time teaching, which I love. We work with incredibly bright students who want to use their talent and skills to make the world a better place. And it’s great to be able to just share with them some of the things I’ve learned in practice. But the other great thing about being a professor is it gives you a platform to have a voice. So I have done legal commentary, as you said, I’m a legal analyst for NBC news and MSNBC. And I get a lot of invitations to write for USA Today and the Washington Post and other publications on legal questions. And my goal in all of it is really just to try to provide information and explain so that people can form their own opinions about things. Sometimes the law that can sound more complicated than it really is. And just by breaking it down and explaining it, I hope to help people understand.
Rich Helppie:
Well, I hope that this podcast can be a step in that direction. And we don’t have time to cover everything that you’ve got expertise in, but I’d like to spend a little time today on a few topics. Kwame Kilpatrick is back in the news. We’ve heard a lot lately about the Michael Flynn case and collusion investigations, the FBI, and there’s terms like unmasking being thrown around. We’ve covered some of the stresses around COVID-19 and that’s brought the law and the legal backdrop into play again. And of course, the just tragic killing of George Floyd and the horrible aftermath. So today listeners on the Common Bridge, we’ll hear from a real expert from a legal perspective, and I anticipate some education and perhaps some policy idea takeaways. So Barbara, a couple of minutes on Kwame Kilpatrick, the former mayor of Detroit, Michigan, what was Kwame Kilpatrick convicted of?
Barbara McQuade:
So with regards to Kwame Kilpatrick, first, let me say Rich, I’m happy to talk with you about all the things that are in the public record about his case, but, of course, anything pertaining to his request for pardons or commutations I need to defer to my successor, Matthew Schneider, who now runs the US attorney’s office. He is certainly well equipped and he’s within his authority to answer any of those questions. But the conviction, certainly as a matter of public record, he was convicted of 24 counts of bribery, extortion, fraud, and tax offenses. And they revolved around abuse of his office as mayor to obtain money for himself and his friends and his family. Mostly he used his power to steer public works contracts. And he used that power to divert $83 million worth of public contracts to his friend, Bobby Ferguson, who was also convicted. One thing that I thought was so important about that case Rich, was that it was not just Kwame Kilpatrick, but 30 members of his administration and those doing business with the city were convicted of federal offenses as part of that investigation. And it really showed a culture of corruption that he created within the mayor’s office. I was very proud of the team of prosecutors, agents and support staff who worked very hard to put that case together and bring them to justice, during a time when Detroit was on the brink of bankruptcy and was certainly in no position to afford that kind of loss.
Rich Helppie:
I was actually going to ask you how the crimes were discovered, but with that many people involved in that many counts it’s seems almost impossible that they could have been hidden for very long.
Barbara McQuade:
There were…we had been hearing for years from people who would report that they had been shaken down-was often the phrase-that they were directed to pay bribes if they wanted to be able to do business with the City of Detroit. Some payments had to be made to the mayor’s father, Bernard Kilpatrick, who was also convicted of tax offenses as part of the investigation. And they had to hire Bobby Ferguson as the excavator on any deal that they had put together for construction. There are a couple of things that really broke open the case because we were hearing from all of these people and kind of putting together these different threads of various schemes, but two big breaks, I think really made a difference in the case. And it really shows how important it is that we have various watchdogs throughout our system. One was when Kim Worthy at the Wayne County prosecutor’s office convicted Kwame Kilpatrick for perjury in the case involving Gary Brown brought-as a whistle-blower when he was fired-relating to his relationship with Christine Beatty. When he left office, suddenly people who had been afraid to talk to federal investigators suddenly felt free to talk. I think they had been worried about repercussions when he was the mayor. And once he was out of office people came out of the woodwork to share their story. The other big break was the Detroit Free Press-the value of our free press-published a story, printing dozens and dozens of text messages between Mayor Kilpatrick and Christine Beatty. Now their focus was about their romantic relationship because that went to his perjury, but it occurred to our team that if there were text messages relating to that, then perhaps there were also text messages relating to some of these extortion schemes we had been hearing about from so many of these contractors. And so our team used a search warrant to obtain all of those text messages and sure enough, they found tremendous evidence to support those allegations. And so at trial, rather than simply having a business person testify that they were asked to pay a bribe in order to get government business-in addition, we could show the text message that occurred right after that meeting where Bobby Ferguson is reporting to Kwame Kilpatrick or someone else within the administration, that they just had a meeting with this person and told him he needed to hire Bobby Ferguson if he wanted to be able to do business with the city. And so that kind of independent corroboration gave extra credibility to the statements of witnesses who can sometimes be attacked as being biased or disgruntled or having some sort of ax to grind. But when you have that sort of objective testimony, it’s very difficult to cross examine text messages. We had enough of those that really built the case. So those two breaks really, I think, demonstrated the importance of having multiple watchdogs on the scene.
Rich Helppie:
Well, and that’s so germane to much of what we’re hearing on the national front today from the watchdog agencies, the inspectors general and the text messaging and people conducting their romance inside of their employment and letting that bleed over. I know that you’ve asked not to talk about any of the sentences or any of the commutations or anything like that. So I won’t, but I know that, not only on the Kwame case, but on many other cases that there’s the suggestion of home release. So Paul Manafort for example, got home release. And how does that work? I mean, can people just go home and watch Netflix and get on their computer? Can they have friends over, can they have a drink? The whole state has kind of gone through that-everybody stay at home and I’m thinking that doesn’t seem very fair.
Barbara McQuade:
It doesn’t sounds too bad after we’ve all done it.
Rich Helppie:
Right. That’s all…it’s home release, just stay in your house, like 10 million Michiganders were asked to do, or are there further restrictions beyond that?
Barbara McQuade:
There are further restrictions typically. Now it’s going to depend on the jurisdiction and on the individual offender. Most often the offender is going to be monitored. So wearing an ankle bracelet, that’s a little different, I think, than what we’ve been accustomed to, and are not permitted to leave the house except with permission. So, whereas you and I might be able to dash off to the grocery store anytime we want to, someone on home confinement is going to have close supervision by some sort of parole or probation officer. And so typically they do get permission to leave for things like medical appointments, religious worship, counseling sessions and things like that, but otherwise must stay at home. So they’ve got a little bit of more oversight than the rest of us have. Some are forbidden from drinking alcohol or other things if there has been a problem with that. But I think the general restriction is avoiding excess use of alcohol. And in terms of visitors, especially if you’re living with other people, I think it is permitted, you’re allowed to have visitors in jail as well. There are reasons that they need-for administrative reasons-to restrict the hours and number of visitors because they’ve got to deal with an entire jail population, but if you’re just living home on your own, there aren’t those additional reasons to avoid visitors. So I think unless you have some specific restriction prohibiting visitors, you are allowed to have them, but I don’t think we should portray it as any walk in the park. It’s certainly nicer to be home than it is to be in prison. But I think with this oversight and ankle monitoring, it is more restrictive than what we’ve been experiencing during stay home orders.
Rich Helppie:
Great. I appreciate the background on that. Let’s shift over a little bit to General Michael Flynn, if we could. And I think most people are familiar with the general contours that General Flynn worked for and was ultimately fired by President Obama. He was a very, very active participant in the campaign for Donald Trump, and upon the election of Donald Trump as the 45th president of the United States, he was appointed National Security Advisor, and then he had some calls with the Russian ambassador that were monitored. And my understanding of that is that all the foreign nationals have their calls monitored. And then was investigated by the FBI at the White House. And we had Ken Chadwell on who was assistant US attorney in Detroit as well to explain that to us, but for General Flynn, what crime or crimes did he plea to? And just how serious are these crimes, so how typical are they? And what would be a typical penalty for a person like this?
Barbara McQuade:
He pleaded guilty to making false statements to the FBI. There were a couple of different topics that he admitted to lying about. One related to a United Nations vote that he discussed with the Russian ambassador, and the other related to sanctions that the US government had imposed against Russia in retaliation for interfering with the election. And so on the day the sanctions were imposed there is a recording that has-the transcript of-which has recently been released-in which Michael Flynn talks about we don’t want to get boxed in, so don’t respond if you can only respond in kind and not elevate what you’re doing in response, is what he requests of the ambassador. When he was interviewed about those statements with the FBI, he denied making them. This charge-false statements-is one that is used very frequently in the federal government. It is sometimes dismissed by critics as a mere process crime. But, if you work in the criminal justice system, this is a very serious crime because it goes to the very heart of the system. Investigators cannot uncover the truth when people lie to them. And so it is an inducement to tell people the truth if they know that lying is a crime and that there are criminal penalties associated with it. Martha Stewart is a famous example of someone who was charged with this crime. The penalties are up to five years, although often times the actual sentencing guidelines in punishment is less than that. I think Michael Flynn negotiated a sentence of zero to six months. And it’s also important to note that this crime was charged as part of a negotiated plea. And so he admitted in his statement of offense document that got filed with his plea agreement, that in addition to the lies to the FBI, he had also lied to the Department of Justice on his official notification forms about his lobbying activity on behalf of the government of Turkey. He had been doing things like writing an op-ed on the behalf of the government of Turkey, that he denied their role behind…there’s also been reporting about a plot to kidnap a Turkish cleric, but he has not admitted to that and hasn’t been charged with that. So I don’t know whether that ever went anywhere. But one of the things that’s important to remember is that charges are often the result of some sort of negotiation and compromise. And so he agreed to plead guilty to false statements and to cooperate, and part of that agreement is that means the government’s going to stop investigating him now for other crimes and crimes that could have more serious consequences. So in some ways, when he first entered that guilty plea, I thought that was an awfully lenient deal that he got zero to six months, but he did agree to cooperate against others, which perhaps had greater value to Robert Mueller and his investigators than securing additional prison time for Michael Flynn.
Rich Helppie:
And I had read that the special prosecutor said that General Flynn gave quote “substantial assistance” in his recommendation for no jail time. What would be categories of substantial assistance or perhaps some examples of substantial assistance to basically back off prosecuting or investigating further?
Barbara McQuade:
We at the US Attorney’s Office frequently entered into similar plea agreements with defendants and offered to provide them a recommendation for a lower sentence, or to even refrain from filing additional charges, if they provided what is known as a term of our substantial assistance. And that can consist of a couple of things. One is information that is helpful in the investigation of crimes of other people. And so it might be information you can put into a search warrant. They might agree to testify at a grand jury about somebody. They might agree to testify at trial about somebody, any of those things could amount to substantial assistance. And a prosecutor will make known the assistance to the court so that the court can take it into account in deciding a punishment that’s appropriate. In addition to criminal substantial assistance, it can also count as substantial assistance if the person offers information that has intelligence value to the government. So even if it is not actionable in terms of in court, if they tell the government something that has value to the intelligence community about the way a foreign adversary conducts business, about who might be involved in working with a foreign government, any of those kinds of things could also amount to substantial assistance.
In Michael Flynn’s case. I don’t know all the things that he told Robert Mueller, but he did provide a number of debriefings. A number of quotations show up in Robert Mueller’s report from Michael Flynn. And so it suggests to me that perhaps he shared with Mueller and his team some of his conversations with other members of the Trump transition team. And he had also agreed to be a witness in a trial against his former business partner named Bijan Rafiekian , but Michael Flynn stopped cooperating before his trial last summer. And so he never did testify in that case, even though I think that was the original plan when they entered into this plea agreement.
Rich Helppie:
So he agreed to give substantial assistance, but before that substantial assistance could materialize, he said, okay, I’m not going to cooperate anymore. Am I understanding that correctly?
Barbara McQuade:
I think that’s right. Now you may have given some information before he got to that point that they consider to have value. But at some point last summer, he switched, got a new lawyer and decided to stop cooperating. It may have been that once he saw the outcome of the Mueller report, he had a change of heart in terms of his decision to cooperate. I don’t know, but that’s likely what caused him to not want to continue cooperating against his business partner, Rafiekian. And once you have someone who’s not interested in being cooperative, I think the Justice Department decided not to call him as a witness out of concern that he would not be helpful after all.
Rich Helppie:
But they still didn’t change their sentencing recommendation. That seems like they would have said fine, you’re on your own then.
Barbara McQuade:
They continued to go forward with the plan I think, as of the early part of this year, when they were continuing to seek zero to six months. At some point the US attorney’s office changed its recommendation to probation from zero to six months. So we’ve got a change in leadership at the Department of Justice from the time the special counsel filed these charges. He closed up shop last summer, and now we have…William Barr is the Attorney General, we’ve got his close aid…is now the acting US attorney in the District of Columbia. And we’ve seen a shift in the way they have approached this case.
Rich Helppie:
Yes. My understanding again, from a lay perspective, is that the new lawyers for General Flynn told them they wanted the plea withdrawn and that the Barr Justice Department said they had no objection. And that’s a topic I wanted to dive into just a little bit. What if the prosecution objects to the withdrawal of a plea? So, person A has pleaded guilty to charge Y, and then comes later and says, no, I don’t want to plead to that. What happens if the prosecution says, no, we’re not going to let you withdraw.
Barbara McQuade:
Well, withdrawing from a plea is quite rare. There are a couple of different ways that the federal rules treat that. And part of it depends on which part of the federal rule they’ve operated under. If the parties reached an agreement for a specific sentence, say they negotiated the sentence will be probation. And they go before a court. And the court says, I can’t accept that because I think probation is just too low. If that is to happen because they proceeded under that rule where they agreed on a specific sentence, the defendant is allowed to withdraw his plea as a matter of law under the rule. What we have here instead though, is the different scenario, which is a recommendation. And when the parties are simply recommending a sentence, typically the defendant is not allowed to withdraw his plea unless he can show a just and fair reason. Now that also is pretty rare. It can’t be just, I’ve changed my mind, and now that I’ve thought about it further, I regret my decision and I want to go to trial. He has to argue something like-actual innocence might be a reason that is just and fair. If there’s new evidence to suggest that he’s not guilty of the crime, that would be a reason for a judge to accept that. He may say that something about the process was unfair that he wasn’t really…it wasn’t a voluntary and knowing plea, for example, that might be a basis. But in that instance, it would be up to the judge to decide whether to allow a defendant to withdraw his plea.
Rich Helppie:
And that is something during all of this communication. And frankly there were a lot of terms thrown around, so I will try my best to ask you questions about what I’ve heard. So first up they said there was something called the quote “Brady Rule”. What is it? And does it have the force of law?
Barbara McQuade:
Yes, the Brady Rule does have the force of law. It is an obligation, every prosecutor takes very seriously. It comes from a case called Brady vs Maryland. And under the Brady Rule, the government may not suppress material evidence that negates guilt or punishment. And each of those words is meaningful. So for example, if the information is equally available to the defendant, then it’s not suppressed. It must be material that is, it must make a difference in the outcome of the case. It has to negate guilt or punishment. It has to be evidence. And so a violation is considered unethical, and it can result in the reversal of a conviction if information is not turned over.
Rich Helppie:
So that might be that accusations of exculpatory evidence being withheld by the prosecutor. And that led me to the question, are there defined limits that investigators and prosecutors have in getting that guilty plea, like kind of accepted boundaries either by the law or by practice? Like you can do this, but you can’t do that?
Barbara McQuade:
Yes, so in talking about Brady material, for example, a true Brady violation can only occur after a defendant is convicted at trial and it turns out that there was information that was withheld. But as an ethical matter, the Department of Justice requires that Brady material be disclosed to the defense reasonably promptly upon its discovery. And so it is something that a defendant is likely to want to see pre-plea, because not only is there an assessment of whether he is or isn’t guilty of the crime, but whether the government can prove it. And if there is significant exonerating evidence, number one, he might…it might go to actual innocence, but it also might go to the inability of the government to prove the case. And so, even though the law does not require a Brady material to be turned over before a plea, the DOJ internal policy does.
I’ll give you an example. If, say there’s a bank robbery case that you’re prosecuting, and you did a lineup where you had the bank teller come in and look at a number of suspects and the bank teller picked out someone that’s different from the person charged with the robbery, you would have an obligation under the Brady Rule to tell the defense about that incorrect selection by the bank teller, that they picked someone other than the defendant, because that would give the defense the opportunity to, at the very least, cross examine that bank teller about her faulty selection, so that the jury could know about that, that she had identified the wrong person and perhaps suggest that the defendant is the wrong person. And so not only does that information have to be produced before trial, but under the policy at DOJ, that should also be produced before a guilty plea, as long as it’s discovered. Now, if it’s information that arises later, that’s different, but if the prosecution has it, ethically he should share that with the defense so that they can make an accurate assessment of the strength of the government’s case.
Rich Helppie:
That really gives me a lot of clarity and understanding, in that my reading about the Flynn case, and indeed reading some of the pleadings and, and transcripts, it seemed to be a question of that parallel…of, well, we knew someone else said you didn’t do this, or other exculpatory evidence, they didn’t give to him to weigh in whether he should pursue the plea. And I, of course, we had the situation that the then FBI Director Comey said he thought he could get away with these surprise visits by the agents. Is that par for the course or is that…how unusual would something like that be-just kind of ambushing a guy like that, if that’s not too strong.
Barbara McQuade:
I don’t know. I think it’s highly unusual that anybody’s interviewed at their job at the White House. I’ve never been involved in advising anyone on that. But if there are no charges pending, there’s really nothing wrong with FBI agents approaching someone and asking them questions. They can always say, I don’t want to talk with you without a lawyer, and they’d have to go away and wait for the lawyer to appear. And so I think Michael Flynn probably got treated the way everybody else gets treated without any special considerations. If either of us were under investigation, I think it’s quite likely the FBI would show up at our door at 7:00 AM before we’ve had a chance to leave and ask if they can talk with us. We have the right to decline. But I think that happens as a routine matter.
And then, I do want to say just a further word tying this to our discussion about Brady material. So under a federal law Brady material must be evidence. And so the idea that simply someone mistreated him or interviewed him by ambush or had an opinion-I know there’s been some talk about the rough notes of agents that didn’t get turned over. And some have suggested that that’s Brady material. Brady material is evidence that negates the guilt or punishment of a defendant. And so remember his crime here is lying to the FBI. Just because agents mused about what their goal might be or the strategy for how to approach an interview does not negate his guilt or innocence. And so there are lots of things that might end up in a case file that do not amount to Brady material. And I haven’t seen anything in this case, and I think Judge Sullivan ruled that there was no Brady violation in a failure to turn any of these materials to Michael Flynn.
Rich Helppie:
And that’s a great leap off point to the next look at this, because my understanding is that the defendant, General Flynn, says I want to withdraw my plea and that the Department of Justice is not coming in and saying, no, wait a minute, we got this plea fair and square. They’re saying, well, we’re not sure that that stands anymore. It doesn’t serve the interest of justice, and that it can go…now it’s up to the judge. And then there is something-I’m trying to pronounce this correctly, an Amicus or an Amicus brief that is going to be filed or has been filed. What is an Amicus brief and can anyone do it? And how does it apply to this case in particular?
Barbara McQuade:
This case has become very unusual and very complicated in what, on its face, is a very simple charge of one count of false statements. One of the things that has happened is in response to Michael Flynn’s motion to withdraw his guilty plea, is the Justice Department filed a motion to dismiss the charge. And it said that it did not believe that it could prove the case beyond a reasonable doubt because it could not prove the element of materiality, and the reason it could not approve the element of materiality-and materiality means that it was important fact. So if you’d asked General Flynn what his favorite flavor of ice cream is during that day and he had said vanilla, but in fact, it’s chocolate, that would not be material to their investigation, but anything that has a tendency to influence the investigative steps is material. And so it’s a very low bar. And so lying about something that precludes agents from asking followup questions is certainly material. The reason the government says it’s not material is that the investigation was not properly predicated. And again, it’s a very low bar to determine what is predication. Predication is really just an articulable factual basis that either a crime has been committed or a threat to the national security exists, such that an investigation can be begun. And the reason that rule is there is just to prevent harassment of people that is completely baseless and without any foundation whatsoever.
And so these are some curious arguments for the Justice Department to make. These are arguments that you don’t usually see the Justice Department make. In fact, you see them make just the opposite arguments. And I think that before a court may allow the Justice Department to dismiss an indictment or charges, there is a rule-Rule 48 of the rules of criminal procedure-that says that they have to obtain leave of court or approval of the court before they may dismiss an indictment. And so they filed this motion to dismiss with the judge. I think the judge found this argument to be just as curious as I find it, and wants to know and ensure that he is not being some sort of party to corruption, that the Justice Department is not changing its position in this case simply because Michael Flynn is a close associate of the president. And so he is appointed-what is referred to as an Amicus, which is a friend of the court. It’s rare that courts do this, but it happens from time to time.
In fact, Judge Sullivan himself did it in a prosecution against former Alaska Senator, Ted Stevens, in a case that involved public corruption that unraveled a bit. And he appointed a prosecutor there to assist him in sorting this out. It’s kind of beyond the court’s expertise to figure out what’s the proper thing for the government to be doing here, but I think he just wants to be comfortable that there is no foul play about, and that in fact, this is an appropriate exercise of the discretion of the Justice Department. So he appointed a former judge and former federal prosecutor in John Gleason. He prosecuted John Gotti in the Eastern District of New York, Brooklyn back in the day, and was a long time a judge there who’s now retired, to help him sort through how he should be thinking about whether he should grant this leave to allow dismissal under Rule 48.
What’s slightly different about this case from most cases I’ve ever seen, where you move to dismiss an indictment-and we’ve done it, I’ve done it-where defendant has died, I’ve done it where the court has suppressed evidence that was obtained in a search warrant because it ruled that it was beyond the scope of a warrant, where a witness has died and is no longer able to testify, or you’ve learned something that makes you have some doubts about whether the defendant’s really guilty. In those instances it’s the right thing to do, to file a motion to dismiss the case and the court readily grants it.
I’ve never filed a motion to dismiss the case after the defendant has pleaded guilty. Under the rules, a defendant is deemed convicted upon the acceptance of his guilty plea. And Judge Sullivan did accept the guilty plea of Michael Flynn in this case. And so all that’s left for prosecution is the sentencing. Ordinarily I do agree with the principle that the separation of powers says that it is for prosecutors to decide which cases should be brought as a matter of their own priorities, and discretion, and resources, and assessment of the strength of the evidence. But here we’re in a very odd posture, just because all that work has already been done and the only thing left is sentencing. And so in many ways, really the ball is in the judge’s court. And so I think to satisfy himself that it is proper to grant this motion to dismiss and that he is not becoming a party to any sort of corrupt scheme, Judge Sullivan has taken the extraordinary step of appointing an Amicus to help him sort through it.
Rich Helppie:
I applaud the judge for the care in that if he just accepted the withdrawal of the plea, he could subject himself to a lot of speculation and this will never end. From my perspective as a citizen, let’s have an all out hearing with adversarial Amicus versus the Justice Department and the defense, and let’s get it all out there and let America see this and such. Barbara, are there any policies or laws that are missing or need to be reconfigured around this? Or is this just so rare that we’re just going to muddle through it with the Amicus?
Barbara McQuade:
I don’t know that we need to change any rules. The latest thing that we have on this is that Flynn himself, his lawyers, have filed a motion for the Court of Appeals to put a halt to what Judge Sullivan is trying to do. They found something requesting a writ of mandamus, which is an order to a judge to immediately enter an order where a defendant has a clear right to relief. And that court has asked for briefs from the parties, which were filed on Monday. So it is getting a little crazy, but we’ll see resolution there and we’ll move on. I don’t think it’s the rules that need to be changed. I think-my personal view is that this Justice Department has done some things to call their integrity into question.
We saw William Barr jump in and direct that the sentencing recommendation for Roger Stone be reduced. And now we see his US attorney jumping into the Flynn case and moving to dismiss charges that were brought by the special counsel-which seems like an end run around the work of the special counsel. So I have concerns about that.
I guess if I were to say one thing that would have been helpful is I think the special counsel closed up shop too soon. He closed up shop at the end of last summer. And I think he had confidence in the Justice Department to see these cases through to completion. All that remained where the trial of Roger Stone and then his sentencing and the sentencing of Michael Flynn. And I think he figured those were routine matters that could be handled by competent lawyers, but we have seen the case lawyers withdraw from these cases. One even resigned from the Justice Department over the intervention by the attorney general in these cases. And so I think that he has undermined the purposes of the special counsel rule. And so I think that the lesson here is if you employ a special counsel, you need to keep them on the job all the way until the end of the cases.
Rich Helppie:
As you said, it is very complicated. And I can’t find issue with saying this should have gone to completion, but perhaps the special counsel did not know about the claim around the Brady Rule and exculpatory evidence kind of changing the landscape. And I hope that we’ll have some time near the end of this session today to talk about Roger Stone and his case, because a lot of that’s very murky for me as well, but I want to kind of try to stay on this because with Flynn, the concern of the country, rightly so, was our president and/or his campaign, and/or people in it, compromised by a hostile foreign actor. And the Horowitz Report-Inspector General Horowitz Report-has been out for some time. I actually posted it on my website. It’s pretty scathing on what the FISA application, the errors that were made in there, and indeed acting Attorney General Rod Rosenstein said yesterday that he would not have signed the FISA warrant to allow this surveillance of Carter Page had he known that he was being presented with information that was known to be false. And the question I have-this may be something that we need to talk to someone else about, but I look at what the inspector general said. I look at what the undisputed conduct of the FBI has been. And I just want to know, is this standard operating procedure for the FBI? And since the FBI was founded, we’ve had issues with the directors kind of getting full of their own power from J. Edgar Hoover forward, or was this a targeted abuse going after the Trump campaign and Carter Page? Or was it something else entirely? That’s what I’m troubled by, that I can’t seem to make sense of that. We know that they gave false information on the FISA applications, and it was confirmed again yesterday. But is that something that they just got sloppy with and just got used to doing, or were they targeting this one case?
Barbara McQuade:
I think if you look at the Horowitz Report and the subsequent review he did of the FISA process, the conclusion is that they were very sloppy and it’s unacceptable and they need to make substantial changes to the FISA process. But it’s important here to engage in some nuanced thinking. And I think that so many people read headlines and think everything has to be all good or all bad and are unable to see the distinction. So it’s important to keep in mind a couple of things. One is Horowitz, the inspector general, said the Russia investigation was properly authorized, was properly predicated, and there was no evidence of political bias in the investigation. So I think those are really important things and they were his top line findings. The next thing is the FISA process was an absolute mess in this case. He then looked at 25 random other cases and found it to be an absolute mess in those other 25 cases as well. As a former prosecutor who relied on this process, where there must be excruciating attention to detail, to find out that it’s not done, is deeply troubling and suggests that we need to reinvent the way we do FISA applications, but it was not unique to this case.
It’s also important to remember that the FISA application related only to Carter Page during a time when he was no longer affiliated with the Trump campaign. And so I think many people try to focus on the so-called Steele Dossier, which was an important part of what went into the Page application, and the Page FISA, to me, that means the whole Russia investigation was illegitimate, or a hoax, or a witch hunt, or something. Think of it this way, number one, Robert Mueller did not use any evidence obtained from the Page FISA in his 400 page report. A way to think about it is, imagine you have built a house on a solid foundation, and then you added a sunroom that was built with faulty materials and fell apart. That is the Page FISA application. The house with a strong foundation is the main Russia investigation.
Rich Helppie:
Well, we know today that the Steele reporting, which was referenced frequently by inspector general-we know today that it was funded by the Clinton campaign and by the Democratic National Committee, going through Perkins Coie Law firm to Fusion GPS, and then to Christopher Steele. And that we know that that made it into the hands of the director of the FBI, James Comey. And we know by Comey’s own words that he used the Steele Dossier-selections of it, the most salacious part of it-in a, not a defensive briefing, but a briefing to the president. And he said, I wanted to get a special prosecutor appointed. So I don’t think there’s any question that the Steele Dossier is in the center of this and that it was referenced, it was referred to-it came from a political providence, but it didn’t explain to the judge, the FISA court, where it came from and who paid for it.
And I read all about the predication and I agree that, as the inspector general said, the investigation was begun there. And of course you want to be extra careful here, but now, as we heard yesterday’s testimony that there was additional questions around predication, the FBI agents saying, there’s no there, and that the Logan Act hasn’t been used in 1790, and that George Papadopoulos saying that accepting any emails would have been illegal. We know that its Director McCabe lied under oath. This all came out yesterday. When I think about how these players operate, I can only speculate how they exchange information. But the notion that Carter Page was somehow a Russian asset, I guess somebody can decide that. And I’m not in a position to say whether they were or weren’t, but one thing I did want to ask today is that the scope of the FBI, where they end and the rest of the DOJ takes up, or the intelligence agencies…what is this whole notion of unmasking? It seems like it’s fairly common, like our current administration has used it like 10,000 times in a year. Is that something that you have experience with?
Barbara McQuade:
So just a couple of things. One is with regard to disclosing to the court, the origins of the Steele dossier. The government includes in search warrant applications and other surveillance requests to courts information from shady characters all the time, but it’s okay as long as the court knows it’s from a shady character, because then the court can assess the veracity of the statements. And so in the FISA application there was a footnote that said that Steele was hired by-I’m reading now from the application from the IGS report-Steele was hired by an identified US person to conduct research regarding candidate one-and it says in parentheses, Donald Trump, candidate one’s ties to Russia. And the FBI speculates that this US person was likely looking for information that could be used to discredit the Trump campaign. And so, no, it doesn’t say it was hired by Hillary Clinton, but it says the worst thing you could imagine about her, which is that the whole purpose of his work was to discredit the Trump’s campaign. And so that gave the court, all it needed to know to assess the credibility of the source. And there were a number of factors that they included about Carter Page beyond that, about his connections with Russia, a statement that he had an open checkbook from Russians to fund a think tank project, that he had coordinated with Russian government, that he had been seen meeting with a number of different Russians. To me the most problematic of all of those things is that they failed to indicate to the FISA court that Page had also been an asset of the CIA. In fact, they wrote in that he was not a source, which was technically correct because it was different terminology, but he had been working with the CIA, which could perhaps explain some of his suspicious contacts with Russia. And I think that omission is a really important one.
Rich Helppie:
Is that the part about where they…it wasn’t explained that he was a CIA asset? Was that where there was a email that said, hey, wait a minute, this was one of ours. And it was modified to make it look like exactly the opposite, and I think that was the lawyer Kevin Kleinsmith if memory serves me correctly.
Barbara McQuade:
Yes. I don’t remember the name of the lawyer, but someone asked, can you verify this? Was he, or was he not, a source of the CIA? And CIA uses different terminology, and so-I forget what they call them, but asset is the generic term-so CIA…and there are different categories. And so I think that statement was probably technically true, but misleading to suggest the opposite. And I know that there’s been a referral for criminal investigation about his intent. What did he mistakenly think he was clarifying by stating an accurate but misleading statement by saying he was not a quote “source” when in fact he was an asset. There are different categories of people who are tasked or paid, or they’re just there to listen and report back on anything they may have observed. And I think Carter Page fell into a different category than source, but I think it was really more of a different kinds of terminology that they use. Now, it could have been an innocent mistake or it could have been a criminal effort to deliberately mislead. And I think that there is an investigation going into why he included those words and what his intent was in doing so. But nonetheless, the reader was misled into thinking that meant he had no affiliation with the CIA, when in fact he did, and that I think perhaps provides a more benign explanation for why he was meeting with Russians than the rest of the application suggested. And to me that’s the most troubling part of that. Because a lot of it is just failure to corroborate certain things. Not that they were false, but that’s the one that I think affirmatively changes the view of whether there was sufficient probable cause to obtain a FISA warrant.
Rich Helppie:
Yes. And this is where the Common Bridge comes in, is whether a person is an ardent fan of our current administration or is just repulsed by this current administration or anything in between. Administrations come and administrations go. But the institutions that-you’ve devoted your life to protecting and keeping the ethics and the integrity-that’s what holds everything together. And I just want them to play by the rules and do all the things you need to do to protect us from hostile foreign actors and cyber criminals and corrupt officials, public or private. But don’t put your finger on the scale and, and treat everybody apolitically, and maybe that’s too much to hope for.
Brian Kruger:
I think this is going to be our stopping point for part one of Rich Helppie’s interview with Barbara McQuade. I think this has been fantastic, and the second half is terrific. And you can hear that a week from today-next Tuesday for part two of this, but again, thanks for listening and we’ll see you next week.
You have been listening to Richard Helppie’s Common Bridge podcast. Recording and post-production provided by Stunt Three Multimedia. All rights are reserved by Richard Helppie. For more information, visit RichardHelppie.com.
Episode 46- Part 2 of Barbara McQuade
Brian Kruger:
Welcome to the podcast, the Common Bridge with Richard Helppie. Rich is a successful entrepreneur in the technology, health and finance space. He and his wife, Leslie, are also philanthropists with interest in civic and artistic endeavors, but with a primary focus on medically and educationally under-served children. My name is Brian Kruger, and from time to time I’ll be the moderator and host of this podcast.
And welcome back to the Common Bridge. This is part two of Rich Helppie’s interview with Barbara McQuade. If you missed the first part of that, it was episode 45, and this is a conclusion of that two part episode. So we join Rich and Barbara McQuade in conversation.
Rich Helppie:
Barbara, I hope we can take a little bit of time on a different topic. We’ve seen the tragic death of George Floyd while in police custody. It’s terrible. When you look at this from a legal lens, what do you see out there? Like if you were going to count crimes and such, and there might be a really long list, but I’d sure love to hear what you’re think about when you look at everything that’s occurred from the officer’s interaction to the things that are happening in our cities and towns right now.
Barbara McQuade:
First, the tragedy of the death of George Floyd-completely unnecessary-and I think has rightfully angered many people in this country, people are feeling a lot of pain and anger. I think that it demonstrates how this age of video and cell phones has captured this reality that has existed for generations is finally waking people up about needs for reforms in police departments. I think seeing the officer with his knee on the neck of George Floyd as the life was literally squeezed out of him is so deeply disturbing, it seems so callous. Oftentimes police and citizen encounters happen quickly-officers make split second decisions. And while in retrospect you can second guess and say they made the wrong one, they were acting under the heat of the moment, doing what they thought was necessary. This one just doesn’t have that feel whatsoever. There are a number of factors that jurors look at like that, like the need to make split second decisions of life and death. This one is so deliberate and lasts for almost nine minutes that I don’t see how anyone can see anything other than callous disregard for life. And so I think he and his fellow officers have properly been charged there.
But it also is a microcosm of a larger problem in society. We have police officers, we need police officers. I know many, many really fine people who are officers who work very hard and risk their lives every day to protect the rest of us and be safe. And when they see an officer like this, they get offended because it tarnishes the badge they wear as well because it makes…people assume the worst about all of our police officers, but no doubt we need reform in a number of police departments. Training is one, but we went through an extensive consent decree with the Detroit police department during the time I was US Attorney. And one of the things I saw was that while training is important, it’s not the only thing. There needs to be policies about what is and is not permissible techniques. Putting a knee on someone’s neck should never be a permissible technique. It leads to something that is known as positional asphyxiation or person on their stomach. When they have pressure applied to their neck, there’s a very high risk of death. In addition to training and policies, there also needs to be accountability by management. And that means that officers are subject to escalating levels of discipline up to termination. So often you see in these departments that people commit an act of misconduct, they appeal to some sort of a civilian review board, their union goes to bat for them, and they’re reinstated with back pay and maybe transferred to a different division, or they get fired from one department and hired by another. I think we need to do a better job of providing accountability for officers who break the rules. If we mean it, we need to instill the culture in police departments that they are not warriors, but guardians.
Rich Helppie:
Well, that’s something that I’ve long puzzled over, that it’s the design of the job of the police officer in any given shift, they might be a marriage counselor, a neighbor mediator, a first responder to an accident, an ordinance enforcement. And yet at any second, you’ve got to go into full warrior mode and be prepared for a violent confrontation. When you look at that job description, it almost defies the imagination that it could be carried out. I agree that absolute accountability-it’s got to start in the locales. I think that we’re very fortunate in our major city-in Detroit-from what I can tell, the chief, James Craig, is quite the leader. And in recent weeks there was some knucklehead doing donuts on the Lodge freeway. They closed it down and chief said, we’re going to find you. And a day later, it’s like, we know who you are, you can turn yourself in. And they ended up, they arrested some guy from Downriver- brought him to justice.
Any nuance in the law-I read something you wrote about the violation of constitutional rights and that my lay interpretation of this, and forgive me, is that the violation of someone’s constitutional rights-to make it a crime-has to be willful versus something like knowing or reckless. It sounded like it made a lot of sense to me. Could you help our listeners maybe understand that?
Barbara McQuade:
You’re referring to the federal civil rights statute. So the officer’s involved in George Floyd’s death have been charged under state law with various homicide offenses. I think we’re now at second degree murder for officer Chauvin, and third degree murder for the other officers. And that’s a matter of state statute. They will be entitled to a defense of a public authority defense, that they were only applying what they thought was reasonable force as necessary under the circumstances to protect their own lives or the lives of others. And that will look at questions like the severity of the crime, whether he was resisting or evading arrest, and those types of things. All of that has to be proven to make out a federal civil rights violation. And typically what will happen is the feds will investigate, wait and see whether justice is achieved in the state system, and if they believe that some substantial federal interest has not been fulfilled will then file civil rights charges. That happened with the Rodney King case when the officers there were acquitted, they came in and filed charges subsequently. So they’ll wait and see what happens, but if they are either acquitted or they’re not satisfied with the sentence perhaps, they can come in and file a civil rights charges. And so it would require all those elements we just discussed about the reasonableness of the officer’s actions.
But then it requires this much higher standard of a willful violation of someone’s constitutional rights. And it’s a very high standard. The prosecutor has to show that the officer had a specific intent to do precisely what the law forbids, not just a bad purpose. And so the instructions make it almost impossible to ever get a conviction under that statute. The jury would be instructed that it’s not enough that an officer’s force was excessive or unjustified or that he intended to harm or to frighten the suspect. It’s not enough to show that he acted…that the death was accidental or negligent or reckless. It’s not enough to show that the death was a mistake or that the officer panicked or used bad judgment or that he had bad training. What you have to show is that the officer knew what he was doing was illegal and he chose to do it anyway. I mean, it really almost amounts to a first degree murder charge. And so I would submit that there ought to be some consideration of modifying that willfulness to a word like knowing or even reckless. It is easier to prove, and it would be still an element that would have to be proven. You couldn’t charge someone who just made a mistake, or negligence would not be enough, but an intent that is not quite so specific as to render it impossible to be proved. We don’t want police officers to be charged with crimes every time they make a mistake. I mean, occasionally they are going to overreact under circumstances and cause someone’s death. We don’t want to transform every one of those mistakes into a crime, but I think that we need to do more to hold officers accountable when they do act to knowingly or recklessly violate someone’s constitutional rights.
Rich Helppie:
That sounds like a great policy change. I think that would make everyone comfortable if you were a victim of a misconduct at the hands of the police of any type of law enforcement. And I’ve chatted with law enforcement officers, and I’ve said, look, what if every time there’s a death or a shooting involving the police that instead of it being investigated locally, it immediately moves to a federal level so there can’t be any knowledge of the people involved. It’s more, what happened here? Was the citizen treated fairly within the law and remove it from the jurisdiction. I’ve gotten some officers that have said that’s a great idea. And I’ve got others that vigorously opposed that.
Barbara, I’m just wondering from you before we jump into this, what I like to call the lightening round, is that as you’re teaching young lawyers, and this is a seminal event today in the horrible killing of George Floyd and the now civil unrest, what are you talking to them about, about where they can make the most meaningful contribution to the society? Do we start at the back end result of the property destruction and things that are going on, or do you move upstream to police training? When you’re sitting there with the young lawyers, I’d be fascinated to understand where they’re focused and where you might be leading them.
Barbara McQuade:
Well, one of the things we talk about is the ability to jump in at all of those different points. I mean, many people want to be on the ground at a micro level working as either prosecutors or defense attorneys handling individual cases. And having good lawyers being able to represent parties in cases really makes for a better system of justice and better outcomes in cases. So we need people to be able to do that, but we also need people working at the policy and to decide and examine our laws and look at, are there better ways to be doing some of the things that we’re doing?
With regard to police reform, for example, there are a lot of good thoughts that are going around now that need to be implemented, but you need good people to focus on this. And one of the things that’s really important that we focus on in law school, is that the details matter. So often today, in our world of social media and cable news, we see images and headlines and we have an emotional reaction and we want to see one side or another be favored, which is a very natural reaction. But it’s really important to drill deeper into the nuance of things, to decide how to make that happen because you can’t paint with broad strokes when it comes to the law. As I just mentioned with regard to the civil rights statute, you have to be able to prove willfulness, versus knowing, versus reckless, versus negligent. Each of those words mean something. And depending on how you write a statute or a policy, whichever those words you use can have a tremendous difference in the outcome. And so helping lawyers understand those nuances, so that they can be meaningful change agents when it comes to these things, is part of our educational mission.
Rich Helppie:
I have full confidence in you and the University of Michigan. Let’s go through a little bit of lightning round before we wrap up. And any of these questions you want to pass on or say, hey, you can’t really do it in a lightening round, I understand. But I have a person of your stature here today so I’m going to ask, in recent weeks we saw protesters on the grounds and in Michigan’s Capitol bringing weapons, and I’ve commented on the stupidity of that based on A) who are you going to shoot, B) how are you going to get a safe shot off, C) why would you make yourself a target, D) do you know the state police have sharpshooters that could pick out exactly which hair on your head they want to hit from 300 yards away. But presuming that we can’t outlaw stupidity, through the eyes of a prosecutor, when you look at those scenes of gun wielding people on the Capitol lawn and inside the Capitol, are there any laws that are broken there or should there be?
Barbara McQuade:
Well, first when they just show up with a gun under our state laws, we permit guns except for places they’re prohibited. And they’re not currently prohibited at our state Capitol. Now, when they go up into the gallery and look down at lawmakers who were doing their jobs and brandish their guns, I think one could make an argument that that meets the elements of felonious assault, which does not require any striking or putting up hands on someone, but it is simply putting someone in reasonable fear of serious bodily injury. And I think when someone brandishes a gun, there is a strong argument for that. I think we should prohibit guns from our state Capitol. Some will say that’s a violation of my second amendment rights, but even justice Scalia, who was a staunch advocate of the second amendment, wrote that we can put reasonable restrictions on second amendment rights, including prohibiting guns from places that are sensitive.
Rich Helppie:
Sally Yates, James Clapper, Susan Rice, Evelyn Farkas, Jim Comey. We now know they’ve testified under oath eight ways to Sunday [that] they saw no collusion, heard of none, didn’t hear of any. Yet we have an elected representative on television repeatedly saying he had seen things that, right now, it looks like it doesn’t exist. I asked this question of another assistant US prosecutor who says no crime, as long as you’re not lying under oath. Should it be a crime purporting you’ve seen something in confidence as a elected member of the United States government, and you’re misrepresenting it, that could inflame people?
Barbara McQuade:
Well, I guess I want to clarify what we’re talking about here, because I think what Sally Yates and others said is that they did not see evidence of collusion. And oftentimes number one, people who are prosecutors are not witnesses, so they don’t see things happen in real time. And the other is how are we defining collusion? President Trump has fond of saying that Robert Mueller found no collusion. I would say he did find collusion. What he said is I can not conclude that this amounts to the legal definition of conspiracy, but he found things like Paul Manafort sharing polling data with Russia. Is that collusion? He concluded that the Trump campaign knew about, welcomed, and benefited from Russia’s interference. Is that collusion? So I don’t know specifically what the statements were, but I think different people can have different interpretations about what is meant by the word collusion.
Now if, as you say, a member of Congress made a blatantly false statement about the president, is that a crime? I don’t know that it’s a crime. Typically public statements that are false are not criminal, but like all members of society, members of Congress are subject to defamation law. And so if they were to defame the president by saying things that were blatantly false, they would have the ability to-the subject of those statements, the president, or whoever it is-would have the ability to file defamation lawsuits the same way everyone else does.
Rich Helppie:
That makes sense to me. You mentioned Roger Stone, and understanding that he relayed data or was ready to relay data that he knew was going to be stolen. I don’t know if he was convicted of that, or if that’s the entire rap sheet on him and is there more coming on him? It must be something serious that it took 24 member SWAT team and an armored vehicle and a helicopter to bring him in. But what’s his role in all this stuff.
Barbara McQuade:
He was convicted of lying to Congress and of tampering with a witness by threatening to kill him if he testified before Congress. In the Mueller report, we see that he appears to be an intermediary between WikiLeaks and the Trump campaign. There are statements that are still redacted in that report. That is the subject of another lawsuit to get the disclosure of the full report, including the parts that have been previously redacted, that suggests that Roger Stone was communicating with WikiLeaks about coordinating the release of those messages. There’s one part that says that the Trump campaign deliberately corresponded with emails they knew that were about to be released to attack Hillary Clinton’s health. That she was weak and not in good health and had poor energy-you may recall that right around 9/11 of 2016-and were pushing that theory, to coordinate with the messaging that they knew was going to be released through WikiLeaks, which included emails stolen by Russians. And so I don’t know if there is more to be charged against Roger Stone as a result of that. But one of the things that Robert Mueller concluded in his report is that because people lied to him, because people prevented others from testifying truthfully, like Roger Stone, because people told only part of the story and not everything, because people used encrypted apps, they were not able to find every fact, and if they had, might’ve led to other conclusions.
Rich Helppie:
Right. I remember one of the things they caught Paul Manafort on was using like a draft email that someone else had the credentials to sign on and they never actually sent anything, but they knew where to find it, which apparently is not a new trick and the FBI was onto that pretty darn quick.
Barb, this has been really, really great. And just, if you don’t mind riffing, I’m going to toss out a number of things here: should our country expect that we’re going to have criminal charges against our president, or is this more of the people around him? Are our political parties the answer, or are they part of the problem? I mean, we’re horribly divided right now. The reporting outlets-are they responsible for adding fuel to the flames? I had Mort Crim on here several weeks ago and he was very articulate about the editing process that’s left out. And one of the things that we’re trying to do on the Common Bridge is get to some objectivity. A person’s opinion is often based on what their political view is. And it’s seemingly the same behavior, whether it’s good behavior, bad behavior, an opinion’s rendered, not by what’s being done, but by who’s doing it. So there’s a lot in there, but I know I’m over time here. And I just wanted to see if you care to comment on any of that and if not, we can move to a wrap up.
Barbara McQuade:
Well, whether the president will be charged with any crimes, I think that depends on what the facts show. I suppose an argument could be made that the president could be charged with a crime for obstruction of justice. I do believe that the Mueller report does make the case that the president engaged in obstruction of justice. And that the only reason that charges were not recommended is because it is against the policy of the Department of Justice to charge a sitting president. And so if he finds himself out of office in January of 2021, the statute of limitations will not have run on that conduct. So I think he could be charged.
Now a really important question that prosecutors ask themselves first is, can a crime be charged? Is there a probable cause that a crime has been committed and do I have sufficient evidence to obtain and sustain a conviction at trial? That’s number one, that’s usually the easy part. The hard part is should I charge this crime? And when it comes to charging a president, who’s out of office and the political fallout that comes with that, I think that whoever is in the position to make that decision has to make it very carefully. On the one hand, you want to make sure people are held accountable for their misconduct. On the other I think you have to think about the political consequences of such a decision. And so whoever is our next attorney general will have some very important evidence to review and some very important decisions to make.
Rich Helppie:
Barbara, what did we not cover today, but perhaps should be discussed? What should people be aware of?
Barbara McQuade:
One thing I would mention is some ideas about reforming police departments. In 2015 in the wake of some of these police shootings-Trayvon Martin, Michael Brown-President Obama convened a task force on 21st century policing and he brought together police chiefs and community members and academics to study and recommend best practices. And they put together a really tremendous report. In fact, the chair of that group, the chief of staff was a woman who’s now in Detroit, Malenka Clark, who is now the executive director of the Hudson Webber Foundation. But it has a lot of really concrete recommendations. And I would love to see some life breathed into that document, for mayors and police chiefs to take that document and work toward achieving some of the goals there.
One of the things that it talks about is collecting data of police shootings and deaths in police custody. We hear about the high profile ones. How prevalent is this problem? What is the race of the people involved? Is it as big a problem as we think, or do we only react emotionally to the videos that we see? Let’s see the data, because only until we understand the problem, can we diagnose the solution. Using use of force policies that emphasize de-escalation, and making that a real priority training on things like implicit bias, cultural diversity, and understanding mental health issues with suspects that they’re dealing with.
And a really important one that I think does not get discussed enough, is officer wellness and counseling for officers. There’s a former Michigan State Police captain who retired and does work on this named Harold Love-in Michigan focused in Detroit-tells his own story about being involved in trauma of being the first to arrive at an accident scene and seeing a young person die, being involved in a police chase where a child was injured, and the trauma that that inflicts on a police officer. Helping them deal with those kinds of things so that they don’t take out that anger on the next citizen that they encounter.
And so some really specific recommendations in that report. You could put a link to that up on your website. I can provide it to you. It’s the Task force on 21st Century Policing Report and Recommendation, and some really great recommendations that I would love to see embraced by police departments across the country.
Rich Helppie:
Any links that you could recommend on any of the topics that we’ve covered or any, particularly policy, initiatives and any policies that, beyond what you’ve mentioned that might be the best policy approach or approaches to make sure the law works for everyone. And conversely, what would be some of the worst things we could do? If you were going to wake up tomorrow morning and go-other than a weird tweet at 3:00 AM, which unfortunately, I think we’re getting immune to-wake up tomorrow and there’s a policy implemented you go, oh my God, that’s the worst thing that could happen? What might be in that category?
Barbara McQuade:
Well, I think anything that is a knee jerk reaction, that is not thoughtful. And I think sometimes we are a country that reacts to the last crisis without really thinking through carefully all of the history behind it and how it might impact things on the future. So I think we’ve become victims of headlines and soundbites without an appreciation for nuance. Anything that we have to do has to appreciate nuance. But I think an even greater threat Rich, is ignoring this moment. So often I have seen either a police shooting or a school shooting, and in the moment I have thought, well, finally at last-Sandy Hook with kindergartners or first graders-at last we have the moment where everybody realizes the horror of the situation and is ready to come together to make meaningful change. And then time goes by and we let the moment slip and we move on to the next shiny object and we have not made reform. So I think we need to be vigilant, to sticking with this issue in this moment. And I think that’s why we’re seeing so many protests and so much anger and violence in our cities, because people have had enough. How many of these are we going to have to live through before we realize it’s time to do something? And so I think the biggest mistake we could make is ignoring the opportunity to make meaningful change.
Rich Helppie:
Barb, that is the reason I started the Common Bridge. It was reaction to one of the school shootings, and I’m sad to say it was one of them-that there’s more. And I was tired of people yelling at each other and then no change being made. And so I have decided to exit my business career and focus on, can we find good policies that make sense? And I actually crafted a gun policy-it’s on my website. I believe it was the second or third podcast that we did. And trying to appeal to people that are on the political extremes to say, you’re not going to get a hundred percent of what you want and also, you’re not going to take the person from the other side of the political extreme and convince them to come all the way over, but is this policy change better than where we are today?
And my view is that the political parties have become very adept at attacking each other, very adept at wielding power to sustain their parties, but not very good at addressing the issues of the day. And it’s fueled by a 24 hour news cycle that has a business model of clicks and eyeballs and shares. And so things are written not to educate, not to discuss, but to inflame and to threaten-because you can’t ignore a threat. And that’s what I’m trying to do here in a small way with the Common Bridge-is can we find ways to…we can all agree we want our people to feel safe and comfortable interacting with the police department at all levels, whether you’re an assistant to the president of the United States, or you’re a person that just bought yourself a pack of cigarettes, it doesn’t matter, but we all should have equal protection under the law.
We should allow that people can feel secure in their businesses, in their homes, that they’re not going to be ransacked or burned. How do we get to a society that has the policies in place where people feel like they’re being treated fairly, where we can dial down the inflammatory rhetoric that we get from those people that are elected to serve? And how do we get a responsible news media that can actually go through an editing process, make sure that they’re factual and maybe change their business model to not threaten? I know that’s a tall order, but your appearance on the podcast the Common Bridge, where we are gaining an audience, I hope will be a step in that direction. And I can’t thank you enough for being on with us today.
Barbara McQuade:
Thanks very much for having me Rich. I’m always eager to engage in conversations where we can take a deeper dive and really talk through issues. So often we are at a superficial level where we don’t get to get into nuance. And so I really appreciate the opportunity.
Rich Helppie:
Well, I thank you so much, Barb. This has been the Common Bridge with Rich Helppie and our special guest Barbara McQuade.
Brian Kruger:
You have been listening to Richard Helppie’s Common Bridge podcast. Recording and post-production provided by Stunt Three Multimedia. All rights are reserved by Richard Helppie. For more information, visit RichardHelppie.com.
