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Hey everyone, it's Reed. Before we get started, I just want you to understand that what we're fighting is multi-front battle.
There will be the airwaves, there will be the internet, there will be neighborhoods and town hall meetings, but all of it matters. It all ladders up to making sure that if we've done our part in our cities, in our counties, in our states, that we will be victorious in November. I thank you so much for listening. I hope you share this podcast with your friends, your families, and your colleagues, and anybody who wants to know more about this fight. Thanks everybody for listening, and now on with the show.
Welcome back to The Lincoln Project. I'm your host, Reed Galen. Today, I'm joined by attorney, author, and professor Barbara McQuaid. She is a professor at the University of Michigan Law School, Go Blue, also her alma mater, where she teaches courses in criminal law, criminal procedure, national security, and data privacy. Wow, we could do hours just on those, Barbara. She's also a legal analyst for NBC News and MSNBC and a co-host of the podcast Sisters in Law.
From 2010 to 2017, Barb served as U.S. Attorney for the Eastern District of Michigan. Her new book, a New York Times bestseller, is Attack From Within, How Disinformation is Sabotaging America, and is available wherever fine books are sold. Today, she's coming to us from an absolutely awesome town, Ann Arbor, Michigan. Barb, welcome. Thanks very much, Reed, and Go Blue to you. Go Blue. All right. Yeah, it was a big year. So let's go from that
Beautiful, you know, appreciation of the University of Michigan and all things blue to misinformation, disinformation. So I think sometimes, Barb, it's a good reminder. We're so inundated by information all the time. Things just coming at us.
Help us, you know, redefine disinformation so that we just are clear about what it means. Yeah, you know, and certainly you're right about information overload. And I think that's one of our challenges today. But I define the terms in my book. You know, I know sometimes people use the terms disinformation and misinformation interchangeably. But I want to talk about them in different ways. And so in the book, I define them differently. One, disinformation I define as the deliberate use of lies, lies.
Misleading statements, deception to manipulate people or to...
advance some agenda. Misinformation is sort of its unwitting cousin. When we read or see or hear something that is false and we believe it to be true and we repeat it. I tell a story in a book about a time I fell for misinformation. I saw something and I spread it quickly. A story that said Patrick Mahomes had told the Kansas City Chiefs he would not take another down for the team until they changed their name to something that was inoffensive to Native Americans.
I believed it to be true. And so I retweeted that. And, you know, later in the day, talking with my husband, realized that, huh, you know, I haven't seen that story anywhere else. I wonder if that's true. And when I went back to see it, I saw that it was posted on an ESPN account, but it was called Sprott Center and not Sports Center. So I had been duped and, you know, had thereby spread misinformation, which I think really can exacerbate the problem. We see something, we get excited about it. We feel passionate about it. Either we love it or we hate it.
And so we spread it onto others. And so that's one of the ways that disinformation works, which is hitting our hot buttons and enraging us or exciting us and getting us to spread that information even further. There are so many root causes of it. But to your point about the spread is that reaction. And there's a difference between reaction and response. Reaction is boom.
Right. Exactly what you're talking about. You see this thing about Mahomes, you hit retweet, you hit like and that we're all guilty of it. Right. I'm sure there are dozens of examples where I saw a headline barb on Twitter or whatever it was. And I just hit retweet because I'm like, yes, I agree with that. But the response is taking the beat, reading the story, saying, does that make sense? But to your point, and you go through this about the, you know, the algorithms and how, you know, not only are the algorithms effective,
pushing this stuff towards us too. But we're all sort of on this heightened, constantly on this edge of like, what's going to upset me today, right? What's going to make me mad today? And, you know, we're fed more of that stuff, right? The systems are designed to give us more of what we're looking for. And of course, now, if you have someone like an Elon Musk and Twitter, you're
He's taken all the guardrails off of that stuff. Facebook's really never had them. You know, YouTube's really never had them, although they claim they're doing stuff. And so that knee jerk reaction, I think, is such a huge component of how quickly this stuff spreads, specifically because.
None of us are taking the time to sort of, quote unquote, do our own research as, you know, the anti-vax bros. Yeah. You know, just this morning I saw on my ex feed a tweet posted by a far right member of the Republican Party in Michigan who tweeted some photos of buses at Detroit Metro Airport and said three buses with police escort. What is this? Is this
illegal immigrants coming to Michigan and, you know, posted the picture, you know, clearly based on no information designed to generate outrage, get people frightened and angry and upset. And then, you know, if you read a little closer, you realize it's actually Detroit is hosting the Sweet 16 in the NCAA tournament and it's the Gonzaga basketball team and their equipment.
But people are, you know, are willing and, you know, they'll do it in the form of a question. So I was just asking, I was just asking questions, but they know that they're just fomenting outrage. So we see it everywhere. And as you say about the social media platforms,
We've allowed them to grow completely unregulated. And I think those who oppose regulation online would say, I oppose censorship, because censorship, of course, is something we all abhor. If we're left or right or in the middle, nobody likes censorship because everybody understands the importance of our First Amendment rights. But I think they hide behind that as a shield to protect everything that they're
Even that which is not speech. So generating algorithms that are promoting content designed to outrage is not speech. That's a program that they're creating to manipulate people, to keep people online and generate ad revenue. And so there are things we can do to help rein in some of those problems online short of censoring speech.
Well, I mean, you're the expert on all things legal. I mean, maybe we should expand the definition of these platforms because look.
Fox News just had to pay nearly $800 million for pushing flat-out lies. Now, if they were Facebook, they could have made an argument, well, we're just a platform. But Fox News can't do that. The New York Times can't do that. The AP can't do that, right? And so it's sort of like it's their bulletin board, as I said in a previous episode. And sometimes they get to decide what it is they're willing to put up. We've just seen that Meta is...
intentionally throttling political speech because it's sort of the lazy man's way out of having to moderate things. Now you can go back and turn, you know, you can go switch the thing back to get politics back into your feed. But the truth is, is like the,
they'll do the bare minimum because they've never been asked to do more than that. And again, look, these are not easy questions, Barbara. What is the definition of the responsibility of these things that we've allowed to grow now for some time, you know, for 20 years now, right? In some cases, how do you rein in something that's gotten so big and so powerful we've seen in Europe? And I don't want to make this about tech necessarily, but
You know, that like Google or whoever it is, like they'll just pay the fine, right? Because to them, it's sort of like the cost of doing business. So that's the other question is if you know that it's a cesspool, right? And these guys can allow more toxic sludge to be dumped into it all day, every day. You know, I guess it's sort of, I'm going to mix my metaphors here. Like what's the first bite of the elephant? One, you're absolutely right to say these are not easy problems. And I think anybody who suggests we need an all or nothing solution here is not appreciating the nuance. Yeah.
As you said, in recent Supreme Court arguments, we have seen social media platforms take the position that, one, we're not publishers at all. We're just platforms. We're like utilities and people can come and be publishers. And those are the people who should be held responsible for the content.
And then in the next case, what they say is we should have editorial discretion, just like the New York Times and other publishers in deciding what goes and what stays on our own content moderation and community standards. Well, which is it? Are you a publisher or are you not a publisher? And I think the answer is, you know, the old tools maybe just don't quite fit or quite work here. You know, we've thought of things differently.
in the real world. And now in the virtual world, maybe we need to think about them a little bit differently. Maybe there's not a perfect analogy to all of these things, but that doesn't mean we have to throw up our hands and say, we can't do anything about this. You know, currently...
social media platforms have immunity from all legal liability for anything that appears on their platforms. And in 1996, maybe that made sense because we wanted to foster innovation and we had not yet seen all of the ways that these tools can be used in harmful ways. But now here we are almost 30 years later and maybe it's time to rein in some of these things. And as we discussed previously,
earlier, we can certainly address the algorithms that are pushing us towards certain content or pushing down other content and giving it lower priority or higher priority. We know from the Facebook whistleblower, Francis Haugen, that Facebook is designed to keep engagement. And the more outrageous something is, the more engagement there is. And maybe that's the wrong way to think about it. And maybe we can regulate that. Anonymity is allowed online. Now, there's some First Amendment argument that that should be protected, but perhaps
requiring verified users when we're posting content, requiring the platforms to verify their users. That's something that Twitter used to do. You had to show a driver's license and provide your date of birth. You know, maybe that's a good idea. Maybe that's not a good idea. But it was a way to make sure that when someone got a blue checkmark, they were who they said they were. They were not a Russian operative, as we saw in the 2016 election, where people with names like Blacktivist and Tennessee GOP pretended to be people they weren't, when in fact they were
Russian operatives. And then I think the other thing we can do is eliminate bots online. You know, there are all these fake accounts online that are there to argue with you. You know, they're programmed to call you mean names and tell you you're stupid and that you don't make any sense. And those aren't real people. They're computer generated AI accounts.
And so maybe we can eliminate bots online because one of the things they do is they amplify with likes and shares some of the messages of disinformation. And if someone controls those bots, it can make it look like that message is far more popular than it really is. So I think there are a lot of things we can do online to regulate that space short of content censorship.
Right. And again, there's no shortage of ways for the individual, I'll use American, to share their opinion. Right. Like, I mean, there used to be, for lack of a better way to put it, you know, there was a day, Barb, when, say, Walter Cronkite was our national editor. Right. He was in a much different time, maybe than it was Dan, rather, whatever it was, but president.
pre, you know, 2007, pre iPhone, right? You know, you could agree, you could disagree, but at least there was someone there whose job was to say, okay, does this make sense? Is this true? Not to say that the media always got it right, but for the most part, there was also a common argument. That's the other part too, about the disinformation space and the bots and everything else is. And I want you to explain a little bit to the listeners about why this all happens is the idea of being confused. I don't know what's right. I don't know what's wrong. I don't know what's up or down or left or right.
Yeah. And I think that is part of the game. You know, the phrase Steve Bannon used was to flood the zone with, you know, expletive garbage. And if there's so much information, we become overwhelmed and we don't know what to think. And so we have to rely on proxies to tell us what to think. And for those who have demonized our opponents and told us that anyone who's not our...
our side is the devil and the enemy and wants to ruin our country, then we may be relying on proxies who are not so reliable. This is one of the tactics I talk about in the book used in Putin's Russia. There's a great researcher named Peter Pomerantsev who talks about how this strategy is used in Russia to flood the zone. He refers to it as the fog of unknowability. There are so many competing narratives out there.
that people become inundated and they don't know what to believe. So they first become cynical and then numb. And finally, they just disengage from politics altogether because who can keep track? They're all liars. I can't keep track of any of it. And so I'm just going to stop focusing on politics altogether and focus on my work and my family, things that I can control. And that's very damaging, I think, for a democracy where we need to have accurate information so that we can be informed voters and make good choices about our future together.
There's a study you cite in here from 2022 that says something like only 20 percent of Americans trust the government. And you talk a little bit about civic education. We can get to that in a minute. But, Barb, to your point about the tottering, teetering nature of a democracy where we are now is that if 80 percent of the country doesn't believe that the government under which we collectively agree to live. Right. That's the deal. Right. We've made this bargain with one another.
is not legitimate. That's a real problem. Yeah. And, you know, certainly I think it's healthy to have skepticism about what government is doing. We should be asking questions. We should be, you know, looking under the hood. We should be seeking accountability when politicians misbehave. But I think that our institutions, you know, our government is us in a democracy. We created this. We elected these people. We can change it. And so
I think if we don't trust our government, it really does undermine confidence in our institutions, which makes it harder for them to go. I think that lack of confidence is one of the things that is feeding some of the political violence that we're seeing today. You know, when you have a Donald Trump talking about
the FBI is planting evidence at his Mar-a-Lago home. Never mind that he later says he had every right to keep the same documents and he accused the FBI of planting. Or he undermines courts and says, you know, the judges who are presiding over his cases are suffering from Trump derangement syndrome or are engaging in election interference. Is it any wonder that there is somebody out there who is maybe a little bit unhinged, who hears that and is driven to political violence? Of course, the culmination of that was the January 6th attack in
where people come to Washington to try to stop the certification of a presidential election. But there are countless examples, you know, the man with the hammer attacking Nancy Pelosi's husband or the men who plotted to kidnap Governor Gretchen Whitmer in my state of Michigan, the threats against public officials, health officials, school board officials, the swatting epidemic that we're seeing. All of these things are driven by those who deliberately undermine public confidence in our institutions of government.
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Let me rewind just briefly to the attack on Paul Pelosi and bring this to Elon Musk's doorstep in particular, which was this man breaks into their home in San Francisco, is looking for Speaker Emerita Nancy Pelosi, finds her husband Paul, instead hits him in the head with a hammer, right? I mean, which is devastating enough. That is political violence, one. But then two, in the aftermath,
And I don't know where this comes from, that it starts to circulate on Twitter that this wasn't, in fact, political violence. This was some sort of homosexual tryst that went wrong. And then Elon Musk, who owns the platform, Barb.
pushes that out there right and now is it mark twain says you know a lie travels around the world faster than the truth can get out of bed or whatever i'm mangling it but that's that's exactly i think what we're talking about which was that had no basis in fact zero it is a lie it is a fabrication but now you have at the time probably the richest man in the world who owns a platform saying i'm going to do this right i'm going to contribute this to the discourse
to the conversation. And it doesn't matter at that point. Once he's hit click or send or whatever post, it's out there. And now tens of hundreds of thousands of millions of other people are doing it. And then guys in St. Petersburg at the Internet Research Agency are going, we don't even have to do it anymore. They'll do it for us. Well, yeah. And that's where, you know, that's where the name of my book comes from. You know, I've been studying disinformation from foreign adversaries for a long time. But, you know, now attack from within. It's our own
people who are spreading this kind of disinformation to create division in society. You know, if you read Robert Mueller's report, he talks about the goal of Russian disinformation was to find all of the crack lines in society, whether it's
gay rights, whether it's abortion rights, whether it's guns, and really drive a wedge there, you know, by pretending to be someone you're not, by pretending to be an advocate for one side and saying outrageous things so that people on the other side say, see, look at how bad these people are. Look at the horrible things they say. And so when Elon Musk
who's got, you know, I don't know, millions of followers and has this credibility as the head of Twitter X, post these things out there, it's completely irresponsible. And, you know, oftentimes he'll do it with a question or just retweet it. And he just did something
where somebody had posted a handful of European countries that don't permit voting by mail. And it said it's because of voter fraud that they don't. Now, of course, it doesn't list all of the countries that do permit voting by mail. It just lists a handful that don't. And Elon Musk retweets that and puts wow next to it. Right. I mean, giving oxygen to the idea that voting by mail is rife with fraud when in fact there's just no evidence to support that.
And so he does have a lot of power there and a lot of visibility. And,
I think it really cries out for regulation, right? I mean, we've entrusted billionaire boys to run our communications industry with a profit motive underlying it. And so, you know, maybe it's time to think about regulating social media the way we regulate a utility, you know, thinking about it the way we regulate electricity or gas power or water and other things with, you know, civic virtue and serving the public in mind as opposed to serving the profits of
of, you know, a few billionaires. Well, you know, you quote Alexis de Tocqueville. He loved the idea of American sort of common associations, right? The idea that we sort of by nature came together in groups that were, you know, we had this rugged individualism, but somehow we sort of subsumed that to, you know, the community to do everything for one another with one another.
But he also said, but I've never met anybody. And this is like 1820, right? Like this is not recently, this is 200 years ago, right? Who said, but I also never met anybody who loved money more than Americans. And I think that's one thing, you know, I asked Kara Swisher about this when I had her on a few weeks ago, which is like, don't people like Musk have any morality? And she's like, one, I don't think we should give them that kind of power to put them on a pedestal like that. But two, you know, no, you know, I mean, as she noted, right, Bob, like,
kid gets picked last for basketball and we're still all dealing with the trauma of seventh grade right like they were unhappy middle schoolers and now the world has to deal with it but i guess that's the other part too which is it's a supply side problem which is there's so much of this stuff out there but there doesn't appear to be any shortage of demand either so setting aside elon musk and the billionaires for a minute i do think there are things we can do from the demand side
to help build resilience against disinformation. I don't want to put everything into the lap of the consumer, though, because I do think that there are some things we can do together as a responsible society to promote...
civic virtue over capacious capitalism. I mean, I'm a capitalist. Capitalism is what makes this country great. One of the things we need capitalism so that we can have nice things and incentives to create innovation and human progress. All of those are good things. But if left unchecked, we will have, you know, billionaires acting in their own self-interest. I think it's just human nature. And so I think we need some checks on those things. But from the demand side, I do think there are things that we can be doing to build resilience among the public
so that we don't fall for all of this disinformation. One is, you know, in our schools and in our communities, teaching media literacy, teaching critical thinking and teaching civics. In Finland, media literacy is a subject that has been taught in schools for decades because of Finland's proximity to Russia and all the disinformation they get fed all the time. And it's worked largely that students understand that when you read a headline, maybe you ought to read beyond
that because the headline doesn't always accurately reflect what's in the story. If you read a story like Patrick Mahomes isn't going to play another down for the Kansas City Chiefs, maybe before you react, you ought to reflect before you provide your response by looking to see whether that's been reported in other outlets. Is it a credible outlet that you're relying on? When you are looking at some sort of statistical study that says, you know, X percent of people in a study did X or said Y, you look at the sample set, right? Was it
two million in the sample set or was it two? Because that makes a big difference. Understanding the difference between correlation and causation, all of those things can make us better consumers of information. You know, it's no surprise that Donald Trump said something along the lines of, I love the uneducated, because when people lack critical thinking skills, it is easy to dupe them and to mislead them. But I think that's one way that we can help a
alleviate the problem. The other thing is we talked about a little bit earlier, we mentioned is civics education. In our country today, we spend five cents on civics education in public schools for every $50 we spend on STEM education. Now, there may be some good reasons for that. You know, STEM education is probably more expensive because you need equipment and computers and other kinds of things. And I'm not saying it's not important, but five cents for $50. I
I think that civics education is getting squeezed out of the curriculum as we focus on these other things. And it's so critically important in a democracy where we, the people, have the power to understand how our government works, you know, the separation of powers and the three branches of government. And I think if anybody truly understood that, they would understand how absurd the claim is that Donald Trump can, you know, order SEAL Team 6 to assassinate his political rival as long as he does it while he's in office. You know, it's just
absurd that a president could act with unchecked power like that. So I think those three things could make us do a better job of helping people to detect the BS that we see online. It's interesting on the civics education piece, because now I grew up outside of Washington, D.C., right? So and my dad worked on Capitol Hill. So I literally grew up in the cartoon, like how a bill becomes
You know, I'm schoolhouse rock, baby. Schoolhouse rock. Yeah. Which, you know, if we just showed that every morning in the social studies class, we'd probably be better off than we are now. But, you know, that's the part that I think is hugely important, Barb, which is how is it that we can or should expect individual voters, individual Americans to understand the importance of participating if there's no underlying understanding?
understanding of why the system is the way it is or how it's supposed to work. You know, that's basically telling somebody, here's a Ferrari you've never driven, right? Here's where the key goes. Here's the gas. Here's the brake. Here's the clutch. Good luck to you, right? I mean, what are the chances that you get out of the driveway without something horrific happening, right? Probably pretty low. And so I think that's the other part too is, you know, there is the lack of education. And then as you said, the disinformation, which is
If you believe something, it's true. Right. So remember back in was it in Arizona where or New Mexico where that guy said he was a county commissioner, I think, and he said he wasn't going to certify a local vote because he believed that it was fraudulent. There was no evidence, nor will there ever be any evidence. Right. It was a free and fair election. But he said, but I just don't believe it.
Well, belief is fine in religion and football teams. Right. But, you know, when it comes to something as analog, frankly, as voting, and I've said this in things I've written, like elections, bar bar binary, somebody wins and somebody loses. The margin can matter. The closer it is, the closer you have a recount. But the truth is, is that most elections are at the end of the day, not that close.
And even if they are, because our elections workers are so good at what they do and the people that analyze this stuff are so smart, like you're going to know pretty quickly whether or not there's any chance that, you know, whether or not it's 300 votes, 3000 votes or 30,000 votes, that there's any chance that there are so many of those that they could have been wrong. Right. And the answer is almost never. I mean, you know, just as an aside, remember, go back to 2000 that, you know, was 538 votes in Florida. Well, Bush lost New Mexico by something like 300.
Right. But there was no recount in New Mexico because the Bush campaign knew, like, we're not going to find those 300 votes. Right. Like, that's not the place that we're going to go fight this battle. And so that's the other part, too, is this sort of like, well, if I believe it, it's true. Yeah. And I think.
There is this effort to undermine confidence in the outcome as well. So, you know, you said the Bush campaign realized I'm not going to fight in New Mexico because we're not going to recover more than 300 votes. You might find, you know, human error accounts for a handful, you know, maybe onesie twosies of voter frauds. But, you know, there aren't the kind of voter fraud that, you know, Donald Trump talks about.
But I think a big part of his effort is simply to create doubt in the public, to create that disbelief. You know, one of the reasons that Ted Cruz said he voted against certification on January 6th is some rather circular logic. And that is, well, if members of the public believe that there was fraud, shouldn't we countenance that?
by not certifying the election, right? Like there's still no evidence there. Yeah, but he's a constitutional lawyer. Like he knows better. He's just, I mean, Ted Cruz is an asshole, right? Like he did it for his own purposes. Yes. And I think that's a big problem. You know, it's not just people who are falling for disinformation. It is those who are deliberately joining in on the con to advance their own agendas, whether it's their own career or their political agenda or their profit agenda. And those to me are the, you know, the most devious users of disinformation. But, you know, I,
My background is as a trial lawyer. We have to rely on facts. I can't go into court and just make stuff up. I have to show a jury or a judge the evidence that I'm relying on, a document, an object, an eyewitness who can say this thing happened. And then from that, make an argument that leads to a conclusion of guilty or not guilty. Instead, we've got people just making up
facts without any evidence. And so I think one of the things we need to remind our citizens of is the importance of when someone asserts a conclusion, asking what is the evidence they are basing that conclusion on, especially with these election results. I believe the election was stolen. I don't believe Donald Trump lost because everybody I know voted for him. Well, you know, you probably know about 17 people, maybe, you know, 70 people, but you don't know the kinds of millions of people it takes to turn the outcome of an election.
Four years ago, Barb, I'm talking to a relative, very smart guy, very conservative guy, very, very successful guy. And this is how long this thing's been around. So I hear that if Joe Biden wins, Kamala Harris is going to resign as VP and then Michelle Obama is going to become vice president and then Biden's going to resign and Michelle Obama is going to be president. And I said, so let me ask you something. You're a smart guy. You're successful. If someone came to your conference room
And said, here's what I heard. I've got this theory. Would you say that makes sense or would you say you're crazy? And he sort of looked at me, goes, I think I'd say you're crazy. I'm like, because it is. But here's the thing, Barb, it's back. Right. Like the specter of the Obama's returning to the White House. Right. Is it bugaboo?
That just enough people and look, we can get into the racial overtones and racial undertones of the reaction of Obama's presidency. And Mrs. Obama has been under merciless and awful attacks for years.
But that's one of those things where four years ago it came up. This year it came up because, again, it's all about questioning the legitimacy, questioning fear. Those people are going to be in charge. And, you know, that's the other part, too, is, you know, going back to the idea of facts. So I listen to Steve Bannon's podcast occasionally. I don't do it regularly because it is brain melting. But.
The last episode I listened to, he says, and we know the 2020 election was stolen from Donald Trump. There is, quote, empirical evidence. And Joe Biden is an illegitimate president. So he's telling all his people all day, every day, because this guy is like hopped up like a rabbit on Adderall. Right. He goes four hours a day. Right. Just spewing this stuff.
that Joe Biden is an illegitimate president, ergo, you live in an occupied country. Yeah. And, you know, his podcast is popular. People listen to it. And, you know, we have the ability in this country to bring defamation lawsuits everywhere.
for individuals, but we don't have the ability to bring defamation lawsuits for ideas, you know, the idea of an election being stolen. I suppose Joe Biden, you know, as a public figure could consider a defamation lawsuit, but, you know, of course, as a public figure, the actual malice standard becomes quite high. But when it comes to concepts, people have a lot of leeway. You know, our First Amendment is a great blessing, but it is also something that can be used against us because people know
that they can say things like this with impunity. But this is, you know, right out of his own self-described playbook of flood the zone with garbage.
And that's what he's doing. And people believe it. And as you say, you know, the othering is such fertile ground of fear. You know, it goes back to the birtherism of Barack Obama. It's the reason they constantly bring Hillary Clinton back from the political dead. Barb, you always know when Fox News is either at an impasse or when they've run out of things to talk about because they always bring Hillary Clinton back up. She's like the control alt delete.
of right-wing media right she's like the hard reset anytime you see hillary come back it's because they're like she's the boogeyman right but what else we got i don't know i guess i guess we can run a hillary rerun right and people are so and let me ask you this because you mentioned that you know you're an attorney you're a law professor former u.s attorney so the rule of law fact-based arguments are sort of your stock and trade but the whole idea of democracy
Is that we, the people, not only have the right to choose our government, but we have the responsibility as well, which is, yes, the First Amendment is maybe some of the greatest legal stuff ever written. You're a lawyer. I'm not. You know, it's one of the greatest legal things ever created. But the bottom line was that the founders, however you feel about them, created change.
checks and balances on the government, right? Not on the people, on the government, because they knew they're trying to get away from George III that unchecked power leads to bad things. And humans, like we talked about with Elon Musk, none of this is new, Barbara, like left to their own devices. Power and wealth will accrue to more power and wealth, which will then accrue to bad things happening. Sure. And, you know, if you read the Federalist Papers, which most of us do in constitutional law as law students, it
They talked about all of these things about, you know, the human nature of greed and power and how it can corrupt. And they talk about factions. You know, they didn't really foresee political parties, but they did foresee factions, which are kind of like that. Factions may arise and could, you know, have ambitions that are inconsistent with the rules of the public. You know, they certainly didn't foresee the ways that social media would create this amplification system, I suppose. Right.
And some of the things, but they certainly did foresee some of these other things, which is why they created the checks and balances. And of course, it wasn't a perfect document. We have seen amendments from time to time to try to address changes in society or changing views, changing values, shore up holes, make changes.
the Senate more accountable directly to the people and other kinds of things there. But one thing that I think is really important to remember is as the Supreme Court has interpreted the First Amendment and others, the First Amendment and no right in the Constitution is absolute because when you interpret the Constitution, you have to do it in the context of the whole document. And so you have to look that
You know, that there's a duty to provide for the public defense in addition to a duty to pass no law that abridges the right to free speech. And so balancing those things means that there can, from time to time, be laws that limit free speech, you know, tying place and manner restrictions for one. Generally, if there's a fundamental right, it can be limited as long as there is a compelling governmental reason behind.
And the limitation is narrowly tailored to achieve that limitation. And so you can't yell fire in a crowded theater, for example. And you can put a gag order on defendants and parties in a criminal case, just as we've seen some of these judges do. You know, Donald Trump says, my First Amendment rights are being violated by these gag orders. They don't want me to they want to silence me.
And that sounds pretty good to somebody who just kind of has a general understanding of the First Amendment. But if you read the cases cited in the order, you will see that the Supreme Court has consistently said that the courts also have a duty to make sure that the administration of justice is done fairly and that people aren't tainting a jury pool or intimidating witnesses. And so very narrowly, gag orders are appropriate. And I think that that sort of nuance is lost in the shrill
conversations on social media with limitations on characters or cable television in you know 30 or 60 second sound bites yes i mean first of all no one's gonna gag him right like he's not gonna shut up and frankly barb at this point like you know other than he hasn't faced a criminal trial yet but what sanction has he suffered he hasn't and many of these people whether or not it's bannon or these other people they haven't really faced sanction either so why would they stop
stop doing what they're doing. And again, I believe this. I'm going to get political for a second with you, but I'm like, I don't think Donald Trump has any real desire to be president again. I don't think he has any real desire to run for president again. I think the only two things he cares about are staying out of jail and making money. And he could probably make money if he could stay out of jail. And I'm not saying that he shouldn't be prosecuted for what I think he did. I think he should.
But I think you can see that if he's got to do this, then he's going to do whatever it takes to be who he is because his superpower is occupying all time and space available to him. And that's classic demagogue stuff, right? None of this is new in human history. We just always have to be reminded of it. And so let me ask you this, as we sort of look forward in the context of
I'm going to call it total politics, right? Which is in America. Look, we've always Americans have always been obsessed with politics. Again, that's not new either. In American politics has always been very tough, very rough, right? The Federalists and the Democrats were not nice to each other. Andrew Jackson and John Quincy Adams loathed one another, right? The newspaper said terrible things about each of them, right? Like, so none of this is new either. I think the difference is now is that, you know, it's not just
It's the outside actors, the Russians, but also to your point, you know, the inside actors you mentioned, you know, the militia guys there in your home state of Michigan. Right. The lone wolves in Buffalo or the Tree of Life, you know, who are radicalized. So now looking forward, I'm going to put it in the context of a campaign. And I'm sorry, because that's how I see 2024. Like, how do we identify? How do we mitigate? How do we push back on some of this stuff?
Well, I think one thing is that we need sort of real-time fact-checking because we see a lot of false claims by Donald Trump and those who support his agenda. For example, Alex Jones was promoting the theory that the ship that ran into the Francis Scott Key Bridge in Baltimore was a deliberate attack. There's zero evidence of that. In fact, the evidence is that it's not a deliberate attack at all. And so, again, just stoking evidence
claims, stoking disinformation. I think making sure that we push back on that, whether it's we means political campaigns or the mainstream news media or commentators who have a megaphone and the opportunity to share that. I think that's one of the things that we can do. I also think that accountability matters. And so we are going to see these criminal trials coming up. And you are right that we have not seen much accountability. In fact, even Alex Jones, who got this big fat
civil judgment in the defamation case by some of the families of Sandy Hook for making up false claims that that was a false flag designed to affect gun control views in America. He's back at it. But I do think that criminal consequences can matter. I hope they do. And
you know, he will have a fair trial times four eventually. I don't know that any of them will happen before the election. I don't know that that's necessarily a bad thing. Maybe it's best that the people defeat Donald Trump at the ballot box, but we'll see how voters respond. But I do believe in the rule of law. And I think
What Jack Smith is doing, what Alvin Bragg is doing, what Fannie Willis is doing are critically important to demonstrate to the public what the truth is. You know, one of the most high profile cases that was prosecuted in my office during the time I served as U.S. attorney was a prosecution against former Detroit Mayor Kwame Kilpatrick.
And he was convicted of extortion, fraud, bribery and tax charges. When he was charged, he claimed falsely that he was being targeted solely because he was a Democrat, solely because of his race, solely because he was young and on the rise. And none of that was true. He was prosecuted because of the facts.
And what happened during that trial is a lot of public attention, the Detroit Free Press, the local newspaper, did a daily blog of the evidence. And the public got to see for themselves the ugly details of what had happened, you know, accepting envelopes full of cash and text messages talking about withholding contracts until people got paid kickbacks. That kind of evidence laid bare to the public helplessly.
helped reveal what was really going on behind the curtain. And so I'm hopeful that we'll see the same kind of thing happen in trials against Donald Trump, where, you know, there's some people who believe and will believe in him forever because they believe in his vision of America, distorted as it may be. But I think there is a level of people in this country, a persuadable middle, who will see the ugly facts of this and realize once and for all that there's
no stolen election, that it was he himself who was engaging in election interference. And I look forward to that day. That's absolutely right. I was talking to a former assistant U.S. attorney in the New York area months ago, and he'd been at the prosecution table when they were going after a mob boss or something. He said, you don't have any idea what happens to these guys. And obviously they were guys when all of these people that they'd known they were family members or whatever, start going, he told me to do it.
He told me to do it. He told me to do it. Right. And remember, too, that most of the people I assume, Barb, who will be called to testify will be people who work for him. Oh, yeah. Right. House counsel. Some of them. Sure.
And some of them, you know, like we don't know. I mean, you'll know this better than I will. Some of them, I assume, if they are believe they're facing their own federal charges, whether or not that's, you know, interruption of a federal proceeding or or the infamous one zero zero one violation lying to a federal officer. Right. You know, they're going to be like, I don't want to go to prison. Right.
Like, I don't want to go to prison. And do you really want to risk going to prison on the not great, but better than average chance that maybe Donald Trump gets reelected and pardons you? But at this point, he ain't going to pardon you. Right. So you've sort of dug the ditch you're going to be in. But I think to your point, that's important, which is getting the facts out, seeing this stuff and really a recapitulation of what happened on that day, you know, three plus years ago.
And why it does matter. And I know that there are a lot of people out there, Barb, who say it doesn't matter politically. But here's what I say. And the listeners have heard a million times is really without democracy, none of the rest of it matters. Without a rule of law that matters, the world becomes arbitrary.
Who decides based on power and or authority how you can do something, how you can live your life, what you will or won't have, what can be taken from you, right? What can be done to you? Then it all collapses. And I think sometimes it's hard to quantify that or qualify that in a way that's, to your point, like bite-sized. How do you say it in 30 seconds so it's punchy?
But, you know, democracy doesn't defend itself. It's ugly. It's messy. That's the whole point, right, is democracy is the moat around which the rest of the world allows us to live our lives. We just don't really see it that way very often. Yeah. And, you know, the rule of law is so important. I teach at a law school and I have students who are abolitionists who advocate for abolishing prisons or at least curtailing them. And, you know, one of the things I say in response is,
That, you know, without the rule of law and without consequences and accountability, we would be a society where those with more power would abuse those with less and would exploit and manipulate us. As a small, weak woman, I don't like my odds in that world. But the power imbalance would exist in physical power, in power.
financial power and in political power. And so those with the most power would use that power. You know, as we said, human nature is greed and would abuse that power to, you know, take all the good things for themselves and cast the rest of us in the shadows. And so the rule of law is what keeps that from happening. We all have disputes. We all want different things. And where we resolve those differences when somebody breaks the laws of society is in our courts. And
And we apply the rules there evenly. It's not always perfect. Our system is designed on the theory that it's better that 10 guilty people go free before one innocent person be convicted. And so the rules, the deck is a little bit stacked in favor of defendants. But when people do egregiously abuse power, the system is designed to hold them accountable. And I think we have to support that system if we want to be able to continue to live in safety and harmony and equality.
So I'll close with this, Barb. Years ago when I lived in California, I saw a story on 60 Minutes about a young man. I think his name was Brian Banks, who'd been wrongfully convicted of rape in Southern California. He was going to be a USC football star. And so I contributed to the California Innocence Project and I was wearing the T-shirt to the office I was working in one day. And this woman came up to me. She goes, you give money to those people? And I go, they get wrongfully convicted people out of prison. Yeah. Yeah.
I'll contribute to that. But like, that's the idea is like, there is that mindset too. If you've been convicted and something else comes up, go, well, I don't know. Did he do something else? And so, yeah, look, I mean, the defendant is supposed to have the rights. That's how it works, right? Because otherwise you're the defendant. And, you know, I always like to say, you know, you look at Putin's Russia or any of these places, how do they always get people tax evasion, right?
some tax thing and they just have treasury officers or revenue officers come get you. And like, who's to say whether or not you did it? You probably didn't. But at that point, it's too late. You're in a cell and, you know, maybe you could pay your way out or maybe you can't. But is that the kind of risk you want to take by letting somebody like Trump or Bannon or any of these acolytes decide for you, right, what's going to happen in your life with all of the other vagaries of humanity? Of course, Barb, accept it.
Yeah, well, as a former prosecutor, I applaud Innocence Projects because if, you know, if somebody who is innocent is serving a prison sentence, that is not only a grave injustice, but it means the system failed and it should be corrected. And it also means the real perpetrator is still out there. And so I think it is in the best interest of justice and public safety.
to correct those wrongs when they happen. And they happen from time to time. People get exonerated because of a bad eyewitness ID or a bad DNA test or something. As a prosecutor, that's the worst thing that could possibly happen is to have someone go to prison for a mistake. Right. Barb, thank you for joining me. Where can everyone find you and where can they find your work? Well, they can find me at Barb McQuaid on Twitter slash X.
or threads. They can find my work at hashtag sisters in law podcast, and they can certainly buy my book attack from within how disinformation is sabotaging America, wherever fine books are sold, wherever fine books are sold. As always, gang, you can find me on Twitter and tick tock as long as those two things are functional at read Galen and over at the home front on substack. Please sign up Barb McQuaid. Thanks so much for joining me. Thank you for having me read and everybody else. We'll see you next time.
Thanks again to everyone for listening. Be sure to follow and subscribe to The Lincoln Project on Apple Podcasts, Spotify, Google, or however you listen. Don't forget to leave a five-star review. To connect with us, follow us on Twitter, at Project Lincoln. And for more information on our movement, to join our mailing list, subscribe to our newsletter, or make a contribution to our efforts, visit lincolnproject.us.
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