Pantsuits and Lawsuits with Attorneys General Kris Mayes and Dana Nessel

Collisions of Power and Protocol at DOJ

• Attorneys General Kris Mayes & Dana Nessel

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Power without guardrails doesn’t just bend the law—it breaks trust. We sit down with former U.S. Attorney Barb McQuade to unpack how federal-state partnerships actually solve complex crimes, and why those partnerships falter when DOJ norms are sidelined by politics and performative “toughness.” From FBI and DEA collaborations that cross borders to the grand jury and charging protocols that keep prosecutions rooted in facts, we walk through the machinery that keeps justice fair—and what happens when leaders try to manipulate our systems to their own advantage. 

Barb takes us inside the culture of DOJ: why morale matters, how selective investigations and “name and shame” tactics corrode legitimacy, and what it costs when dockets are flooded with low-complexity immigration cases at the expense of public corruption, cartel, and violent crime work. We get specific on Arizona’s fentanyl pipeline, agent redeployments that weaken strategic cases, and the difference between optics and outcomes. We also examine leadership under pressure, from subpoenas targeting gender-affirming care to universities and hospitals that “obey in advance,” and why institutions must balance legal risk with their own organizational values. 

We don’t stop at problems. Together, we outline a path to repair: codify core DOJ norms into durable regulations, restore a real firewall between the White House and federal investigations, reinvest in prevention and complex cases, and demand a Congress that reasserts oversight regardless of party. The through line is simple and urgent—democracy relies on rules, habits, and courage. 

Attorney General Dana Nessel:

Hello and welcome back to another riveting episode of Pant suits and Lawsuits, your favorite place to learn about American law and the ongoing legal battles determining the future of our country. I'm Michigan Attorney General Dana Nessel.

Attorney General Kris Mayes:

And I am Arizona Attorney General Kris Mayes, and we're going to be talking about a very, a very serious subject that I think you and I and all of the AGs across the country care about, which is we're going to be doing a deep dive into an agency that has been historically an incredibly important partner to AGs, to local law enforcement and state law enforcement across the country.

Attorney General Dana Nessel:

We rely routinely on these partnerships. And I think something that people don't always know or understand is our authority ends at our state borders. So I only have authority within the State of Michigan. You, I presume as well, only have authority within the State of Arizona. But there are so many types of criminal activity that are multistate in nature. And if you don't have the federal government involved and you don't have the FBI and the DOJ working in concert with our states, there's a lot of crime that we're just unable to solve. Yeah, we partner with the FBI on countless different types of cases. We have a Human Trafficking Task Force. We have an Organized Retail Crime Task Force. We have a Domestic Terrorism Task Force. We have a task force that deals with unsolved murders. I mean, the list goes on and on.

Attorney General Kris Mayes:

No, for sure. And I -- I think people don't appreciate those partnerships. Probably because we maybe we don't talk about them enough, but here in Arizona, we work closely with the FBI, with the DEA, with HSI, with ATF on a whole host of issues. Here in Arizona, because we're a border state, obviously, down -- and have the Mexican border, we work closely with the FBI and the DEA on drug cases, but also on sex trafficking cases. We have something down here called the Joint Terrorism Task Force, the JTTF, which helps on national security cases related to the border, but also on Election Day security issues. And this is a -- these are close relationships between federal agencies and, and, and state government that are really crucial. So, like, what happens at the FBI and the DEA actually matters to our ability to catch bad guys.

Attorney General Dana Nessel:

Yeah, and the worst feeling in the world is wondering when you see certain things happening at the federal level, can we trust these partnerships anymore? And you know, that is deeply concerning because, but not for these relationships, some of our most egregious types of, of crimes and the most successful prosecutions would not have happened. Well, we're very excited for today's guest, Barb McQuaid. Barb was appointed by President Barack Obama and served as the U.S. attorney for the Eastern District of Michigan from 2010 to 2017. Before becoming U.S. attorney, McQuaid was an assistant U.S. attorney in Detroit for 12 years, serving as deputy chief of the National Security Unit, where she handled cases involving terrorism financing, export violations, threats, and foreign agents. As U.S. attorney, she oversaw cases involving public corruption, terrorism, corporate fraud, theft of trade secrets, civil rights and healthcare fraud, among many others. And she is now a professor at the University of Michigan Law School, and she moonlights as a legal analyst for NBC News. So let's all welcome Barb McQuaid.

Barb McQuaid:

Hey, Dana.

Attorney General Dana Nessel:

Barb, thanks so much for joining us uh on our podcast. It's a real pleasure and honor to have you here and also very timely for a million different reasons.

Barb McQuaid:

Yeah, sadly enough, events, I suppose, make our conversation very timely, but honored to be with you both. Wonderful champions of the law and democracy. And my honor to be with both of you.

Attorney General Dana Nessel:

You know, and actually, Chris, I just texted Barb not too long ago because I was so deeply concerned. It was an article about just things that were happening at the DOJ. And the author of this article said that normally they have no issue at all finding experts who used to work for the DOJ who will comment on something to say, you know, if something is, is sort of not the protocols that they were used to when they worked there or how things usually happen or don't, they couldn't find any experts who would speak out. And that, that was scary, but of course it helped me to appreciate the fact that Barb has been unafraid to speak her mind for the many years she's been now removed from the U.S. attorney's office.

Barb McQuaid:

Yeah, thank you, Dana. You know, I think one of the things that liberates me is I work as a professor. I enjoy academic freedom, and I can say what I really think. And so many people, I think, in this Trump Administration are fearful of the consequences. So people in law firms don't want their firm to be targeted the way we saw earlier in this Administration. People who work in-house at corporations as lawyers don't want to speak out. And so many DOJ alumni are worried that if they provide candid, negative commentary about what's happening out of the Department of Justice, the wrath will be turned toward them. You know, I'm lucky that I'm just not that big a deal. I have the freedom to do that. But it it is getting lonelier and lonelier because what we've seen this term that's so different from the first term is these pillars of democracy, these institutions of power, like universities and law firms and the press, this time around are really trying to just keep their head down and go along with what the president says, or even worse, some of them are supporting him, giving him donations. You know, I think about the the tech bros who showed up at the inauguration and gave, you know, million-dollar donations for the inaugural fund. They're not just not criticizing him, they're actually, you know, feeding the flames of the Trump 2.0. And so it is a very different time we're living in.

Attorney General Dana Nessel:

So candidly, after the election last November, not too long afterwards, I contacted Barb. And I was really concerned about some of the threats of vengeance that Trump had made during the course of the campaign. And he was very specific about some of his enemies that he intended to go after using the Department of Justice. And what you said to me at that time, Barb, was that there were really too many protocols in place and too many layers of bureaucracy to allow that kind of thing to happen unless you, you know, actually had just cause, as opposed to, "I want to go after you. Now let's find something somewhere, anywhere that we can utilize to do that." And you assured me at the time that that couldn't possibly happen. But now we're in the situation where we see our colleague, Tish James from New York, who's being investigated and very publicly, you know, a statement made by Pam Bondi that they'd be going after her, Senator Adam Schiff, who is, is been targeted, James Comey and John Bolton and many others. And I wonder now, looking back at our conversation that we had many months ago, and what is unfolded if you've changed your mind about that.

Barb McQuaid:

Oh, Dana, I was so young and naive way back then, just a few months ago. Those are months ago. I was -- I've, I've grown so much since then. I am not as optimistic now as I was then. I still think that there are checks in place to prevent somebody from being convicted of a crime they did not commit. That includes the grand jury process, courts, the jury system, the right to counsel, and all of those kinds of things. But I am not as confident as I was then that someone won't find themselves under investigation on baseless grounds or at least selective grounds. I'm especially troubled by Ed Martin. You know, he was the nominee for U.S. attorney in Washington, D.C. who did not have the votes. A, you know, stop the steal believer, represented some of the defendants charged on January 6th. He now has the position of weaponization czar. You know, he is running the weaponization working group. And one of the things he said upon taking that job was -- he's also the pardon attorney, by the way, and he posted online when he became the pardon attorney, no MAGA left behind. Wow. I mean, what does that say about someone who is supposed to be an independent actor at the office of the pardon attorney, fairly and uniformly making recommendations to the president about who should get a pardon? No MAGA left behind. But that's the least of my worries. The most of my worries is that what he said in his capacity in this weaponization working group, and this is the one that is looking into Tish James and others, he said, I'm gonna see my job as to name and shame people. So even if ultimately we don't have enough evidence to charge them, we can at least let the public know what they've been up to because, you know, public shaming is so important. That is absolutely contrary to those protocols that I mentioned back then when we spoke, Dana. There are protocols that say cases -- you can't go on a fishing expedition to start a case. You have to have independent evidence that a crime has been committed. It also says that you cannot use partisan politics in any making of any decision in any case. It says you may not engage in selective prosecution. That is, I'm only going to prosecute this group and not another group for engaging in the same kind of behavior. And the Justice Department neither confirms nor denies even the existence of an investigation until it speaks through an indictment. So everything about what I am seeing from Ed Martin and this weaponization working group flies in the face of all of those kinds of protocols I've talked about before. So, although I don't think anyone's going to be convicted of a crime they did not commit, I think we are going to see this name and shame of damaging people's reputations even when there is not evidence of crime.

Attorney General Kris Mayes:

Barb, what are you, I'm curious to get your take on what this does -- all of this, whether it's the weaponization working group or the firing of top FBI officials or FBI agents who worked on the J6 cases, which it seems, obviously insane and totally inappropriate. And now there's this lawsuit, I think -- I haven't had a chance to read it -- from the FBI officials who were fired or pushed out. What does it do to the the folks who remain behind? I mean, what -- what's going on inside DOJ and the FBI?

Barb McQuaid:

Yeah. I, you know, I know from people who have left in recent times that morale is very low because most of the people who take these jobs are not political actors. They take these jobs because they want to serve the public. They take great satisfaction in that. They make case decisions based on fact and law. And now they see actors like, you know, Kash Patel and Pam Bondi making statements that are just contrary to DOJ policy that are politicized. And so I think the morale is very low. You know, they've seen a huge shift in enforcement priorities away from public corruption and white-collar crime and in favor of immigration offenses. I think there are many lawyers who would say, "Are we really making our country a safer place by engaging in this zero-tolerance immigration enforcement where we're, you know, picking up grandmas and parents dropping their kids off at school?" When I served as U.S. attorney, we brought many immigration enforcement cases, but we prioritized based on people who are in the country who posed a threat to national security or public safety. There was a prioritized list of who was sought every day for removal. And they've abandoned that list in an effort of quantity over quality. I think what doesn't get recognized is the resource allocation. It means other cases are not being prosecuted. So if you're just going after the low-hanging fruit, and I don't mean to disparage people and by comparing them to fruit, but the easy cases, I'm just gonna, you know, patrol around and pick up people now who look black or who look brown, who speak Spanish, uh, Supreme Court says that's okay for now. Instead of taking the time it takes to go after serious threats to our safety or the integrity of our government systems. You know, we worked on public corruption cases that took more than a year to put together, but well worth it, I think, to clean out City Hall when we had, you know, a corrupt mayor and you know, when you've got corrupt city council members who are, you know, stealing millions from the public trough. In the same way, you know, violent crime. There are some very serious violent crimes. Because of the dedication of resources to immigration cases, it means some of those cases aren't going to be prosecuted. Just to put a number on it, when I served as U.S. attorney, we averaged about a thousand cases a year. That's about what our capacity was -- little up, little down. That's about what we were able to do. If now suddenly 25% of those cases are immigration cases, someone's got to give. And we know that the Trump administration has disbanded corruption working groups, cryptocurrency investigations, public corruption investigations, foreign influence task forces. So that's the stuff that's not being done just so that we can prosecute, you know, grandma who overstayed her visa.

Attorney General Kris Mayes:

Out here in Arizona, we just dealt with a situation in which 60 DEA agents were redeployed away from Arizona to Washington, D.C. We're the fentanyl funnel for the rest of the state. We're on the front lines of the fentanyl crisis. I'm trying to fight the Mexican drug cartels with the DEA. I had asked Pam Bondi for 50 more agents, and she took 60 of my agents away to go patrol foggy bottom for immigration and I don't know, picking up trash or whatever they're making them do. I guess I would -- I'm interested in your take in someday this will all be over. And how do we put all the pieces back together at DOJ or in these agencies where all of this bad stuff has happened?

Barb McQuaid:

It's a great question. And I think there's no easy answer to it. You know, this diverting of resources, I think, to make this sort of short-term show of power, right? "Look at us, we're doing something about this." And, you know, as we said, what people don't see is what is now not happening. For you, addressing the fentanyl crisis, that is one that is taking lives. That is a real crisis. Or I know in California, when National Guard troops got called up in Los Angeles to respond to protests over immigration enforcement, what Governor Gavin Newsom said is these National Guardsmen would otherwise be working on fighting wildfires in our state. So they're, you know -- they're raging. Meanwhile, we've got all these guards standing around in Los Angeles. I think that if President Trump were really interested in reducing violent crime in Washington, D.C., he wouldn't be putting troops on the streets. He'd be doing other things that can really make a difference in violent crime reduction. For one, they're not in neighborhoods where the crime is occurring. They're in front of, you know, the Washington Monument where all the tourists can see them. It's all about show. It isn't about effectiveness. Similarly, what the data shows is that prevention programs are a critical part of addressing the root causes of crime. And instead, they just want to arrest and prosecute, you know, and look tough. It's never going to stop the flow of crime if you don't address the root causes. So, how do we get back to normalcy? I think it's going to be very difficult because one thing I worry about is as many good people have left these jobs in the federal government, and I'm aware of many who've left DOJ or the FBI or other places, either through retirement or termination or whatever it is, they've been replaced by other people. And I don't know who these people are, so I don't want to disparage them. But I do know that one of the requirements for hiring is that people answer a series of questions, including which of President Trump's Executive Orders are you most interested in executing? And tell us how you will be doing that. You know, what are they picking? Flag burning? Alien Enemies Act? So I worry that the people they're hiring are people who are, you know, on board with this political Justice Department. And how do you get rid of them? Because if you follow the merit system protection board rules, they get to stay unless they've committed, you know, some just cause for their termination. So they're gonna be what's referred to as burrowed in. And I worry about whether they are going to support and defend the constitution as they swore to do. But, you know, I -- I know there will be a temptation, I think, to fight fire with fire and to terminate all those people if they got hired during the Trump Administration. I don't think that's the way to do it. I think you have to, if you want to return to normalcy, you have to return to normalcy. And that means all of those post-Watergate norms that I mentioned earlier with Dana, I think it means enforcing all of those things. Maybe we codify some of those things. Maybe they become, if not statutes, um part of um the federal regulations. So they can't be changed with a stroke of a pen. There has to actually be the notice and comment period before you can change them. Um, but now it's just policy. If somebody violates the policy, there may be internal discipline, but nothing else. And so maybe putting some teeth into those things is the way to make sure people stay on the up and up. Um, I think the other thing we really need -- that we're really um in trouble for at the moment is uh a Congress that is vigorous. Um, we've seen Republicans and Democrats, you know, some are out there um leading the charge, but too many, I think, are just following the political winds and they say, oh no, Donald Trump's kind of popular. Maybe I ought to keep my mouth shut and not criticize him so much. You know, our Constitution is written in the idea of separation of powers, that there'll be vigorous oversight by Congress and maybe impeachment if a president overreaches with his power. But, like, the chance of that happening right now seems slim to none. But, you know, we've got 2026 midterm elections coming up. If we could get people in office who are, whether Republican or Democrat, just people who are willing to um hold a president accountable and not in shrewd on powers of Congress, right? Like the power to tariff is a power of Congress, impounding appropriated funds from Congress, rubber stamping his nominees like Kash Patel and RFK, Jr. Like, come on, Congress, get a backbone.

Attorney General Kris Mayes:

Well, the AGs will definitely agree with you on that point. We've we've brought no pretty much all of our lawsuits are brought on under that premise. So uh hear, hear to that. I've been super frustrated. I'm a former Republican and I am a former newspaper reporter, and I covered uh several Republican campaigns for president. And I'm frustrated at the Republicans who are out of office, like George W. Bush and Dan Quayle, and frankly, the name names. And where are they? Where I mean, come on. You know, the -- the people who we need to be speaking out who really have no reason. I don't see any reason for those Republicans who are never gonna run for office again to not be speaking out. But I, you know, I don't know.

Barb McQuaid:

And and and the names you just named would have so much credibility in the Republican Party because it's very easy to portray Democrats as, you know, well, there goes the radical left again, just defending their own or whatever it is. Right. What is so um damaging, I think, about this particular political moment is how divisive it is. The rhetoric after the shooting of Charlie Clark -- Charlie Kirk has all been about, you know, us versus them, the radical left and all this sort of stuff. And it would be wonderful for some of the names you've named to sort of, you know, call for unity. And I know some of them have, but to also say that it is just wrong to engage in this kind of divisive rhetoric because it is uh damaging our ability as a country to move forward, to make progress. You know, Trump is great at knocking things down, not so great at building things up. You know, maybe we're gonna get -- throw some immigrants out of the country, but what are we doing to improve the immigration system? You know, nothing. Uh, you know, tariffs are going to get imposed. And I guess, you know, that makes us look like a tough guy on the world stage, but is it really gonna help consumers or American businesses, right? Uh so I -- I think Republicans do have the voice where they could say those things. And I wish we could hear more of them.

Attorney General Dana Nessel:

If the plan by some is to make it so that, you know, people like us are so fearful that we're not gonna go out and do, you know, the town halls that we've both been doing for a long time, the public appearances we do, the -- the roundtables that we like to do. I mean, I think we both believe it's part of our job to interact personally with the public. And, you know, it's -- it's terrifying when you think, well, maybe I have to pull back and not do that kind of work because it might be jeopardizing my life because there's so many people who are out there uh who see this as a legitimate avenue uh to use violence in order to -- to quash uh an opinion that you don't like or a public office holder that you didn't vote for.

Attorney General Kris Mayes:

Yeah, I mean, that's a really good point. And it it is -- I and again -- you know, we have to say over and over again that political violence is never acceptable. Um I you know, I have to say I'm -- we've been thinking about Charlie Kirk's family. You know, his family is, you know, from Arizona. Turning Point USA -- obviously, I don't agree with the organization. I don't agree with pretty much anything that they have said over the years, but it's here in Arizona, and I feel for for his family and his wife, Erica. But I -- I think you're also right to point out what -- w hat is this gonna mean for us as a country? I don't intend to stop doing those town halls. I did -- yesterday, I went to Payson, Arizona, and did a town hall right after this happened. But it does make you think. It's like, well, am I putting myself in danger and am I putting the people who come to the town halls in danger as well?

Attorney General Dana Nessel:

Yeah, you know, t here's that, and I -- I should tell you, I'll just tell you a story uh and it involved obviously we're both affiliated with the Democratic Attorneys General Association that we referred to as DAGA. And for a time, this is before you were in office, for a time they used to ask me to help recruit good female candidates for office. But, invariably, I would get asked the question when I was talking to somebody that they were -- that was looking at -- at running, and they'd say, "Well, am I gonna be subjecting my family to threats if I do this?" And I'd say, very honestly, "Oh yeah, all the time. You're gonna get threatened constantly. You might get swatted, you might have people come to your house, you might have people threaten your children." And then, invariably, the response to that is like, "Well, then maybe I'm not gonna do this." Anyway, end of story is Daga stopped having me talk to prospective candidates. But I felt like I had to be honest with them, you know? I mean, it wasn't right for me -- for them not to know what they were walking into. And I guess my question for you is, did you know the level of -- of animosity that would be out there just for you holding this particular office and having the perspectives that you have?

Attorney General Kris Mayes:

That's a great question. I guess no. I, I, I guess I wasn't ready for it because I didn't -- I didn't face it when I was in statewide office before. You know, got to remember, I served two terms as a Republican back in the 2000s on our -- our public utility commission, an elected position, and never faced anything like this. But then again, the internet wasn't what it was today, right? You know, we didn't have -- I did not serve the first time during the time of Twitter. But these are the kind of -- crazy kinds of things that, yeah, I did -- I guess I didn't really fully think through, but I don't think that I would do anything differently, Dana. I'm -- I would have done it all over again, and I'm -- yeah.

Attorney General Dana Nessel:

If I can ask about two different subject matters at the same time and get your response. One has to do with, you know, your university and my alma mater and the fact that Pam Bondi and the DOJ have been issuing subpoenas in regard to things related to gender-affirming care for trans youth uh and -- and U of M. And today, Corewell Health, another major healthcare provider, just capitulated and said that they're not going to provide this kind of healthcare anymore. Just because we don't want to have to answer to DOJ, even though there's no crime that they're investigating. And there is -- not just that it -- there's no law that um prohibits that. In Michigan, we actually have a civil rights act that demands that um gender identity is a protected class. So I wanted to ask you about your thoughts about that with -- I know it's hard because you work for U of M, but I'd love to hear what you have to say. And the second thing that I wanted to ask you unrelated, the Charlie Kirk assassination having just occurred. And I can't help but notice that most of the major announcements don't come from the FBI, but they come from Donald Trump himself. He is the one announcing that Kirk, you know, passed and that -- that he's actually had died from his injuries. He was the one who announced when a suspect was apprehended. And I find it to be very unusual for those statements to be coming from the White House instead of from the FBI. So I'd like to get your thoughts on both of those things.

Barb McQuaid:

Yeah, happy to talk about both of them. So this capitulation on gender-affirming care is really disturbing. First, let me make it clear. I don't speak for the University of Michigan. They have leaders who decide these things. But just, you know, little old me, in my view, it reminds me a whole lot of -- it's become almost a cliche now. But Timothy Snyder, the historian, you know, wrote this great little book called " On Tyranny." And one of his 20 principles for fighting tyranny is don't obey in advance. And I remember reading that a few years ago when it first came out and thinking, I don't really know what this means, but that people will start, even before they have to, will start capitulating for fear that the consequences might get grave. And so they want to hide. They're a turtle, you know, retreating into their shell. Don't look at me over here, go somewhere else. No -- no trouble for me. You won't get any trouble from me. And that's what we're -- we're seeing. You know, we also saw it with the University of Michigan with DEI, even before the Trump Administration said you can't -- you know, we're we're looking at you -- gone, like, just got rid of them. So I think that kind of blind obedience in advance is likely what good lawyers advise their clients to do. And good lawyers should advise their client -- their clients that way. But you know what a leader does? A leader says, thank you for that information. I'm glad to make an informed choice, and we are gonna continue to be the leaders at best, and we're gonna do what we think is right. So I fault the leaders, not the lawyers. The second question about the Charlie Kirk -- I agree with you, Dana. And one of the things, one of these other big post-Watergate reforms, was to separate the White House from the Justice Department and make it clear that the Justice Department acts independently. From time to time, it may be necessary for the Attorney General to give the president a heads up. You know, "We're going to unseal an arrest warrant and an indictment against a head of state, and this might affect foreign policy or diplomacy." You know. "Good. Thanks for the heads up." But in terms of running an investigation, that is the Justice Department. And I find it deeply troubling that the president is the one, as you say, making these announcements. And I also find it troubling that the president isn't just making announcements, but he's exploiting this tragedy. It is all about division. And President Trump has said something like, "We will like fight like hell to beat back these radical leftists who did this." Like, one guy did this, one, you know, unhinged person did this. We should be talking about the root causes that are causing mass shootings in the United States and targeted shootings in the United States and use it as a moment of unity and not division. And so I think that is, you know, one of the many ways in which Donald Trump is sabotaging America.

Attorney General Dana Nessel:

You know, these are -- these are times that obviously the historians will write about and -- and probably try to psychoanalyze for a very long time. But, Barb, just want to thank you for all your tremendous work and how outspoken you've been and unafraid at all times. And we need more people like yourself that are out there who will speak truth to power at all times.

Barb McQuaid:

Well, thank you both. And back at you because I think one of the silver linings of the past year has been courts and lawsuits and the attorneys general who have brought some of those successful lawsuits. So thank you both for your work.

Attorney General Kris Mayes:

Thanks, Barb. Well, folks, that is all we have for this week's episode of Pantsuits and Lawsuits.

Attorney General Dana Nessel:

And we'll be back soon with even more captivating conversations and insightful interviews about the ever- changing American legal landscape.

Attorney General Kris Mayes:

So until then, don't forget to check us out wherever you get your social media. Subscribe, and we'll see you next time.

Attorney General Dana Nessel:

Thanks for listening.