← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The DOJ's Prosecutorial Malpractice Keeps Spilling Out in Court
00:59:50
New developments in the Epstein and Comey sagas have revealed a lot about how justice can still break through the lawlessness of this moment.
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- [00:00]
Dalia Lithwick
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Mimi Rocha
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Dalia Lithwick
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Dalia Lithwick
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Mimi Rocha
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Dalia Lithwick
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Mimi Rocha
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- [00:42]
Dalia Lithwick
B A B-B-E-L.com Spotify rules and restrictions may apply. I'm Dalia Lithwick. This is Amicus Slate's podcast about the courts and the law and the Supreme Court.
- [00:57]
Mimi Rocha
This was me at 14 years old. I was a child. I was in ninth grade. I was hopeful for life and what the future had held for me. He stole a lot from me. I have a 14 year old daughter myself, the same age I was. And when I look at her, I see the little girl I used to be, the one that no one protected.
- [01:23]
Dalia Lithwick
They're trying to somehow tie President Trump to the scandal.
- [01:27]
Mimi Rocha
President Trump has nothing to do with it.
- [01:29]
Dalia Lithwick
He has said himself he has nothing to hide.
- [01:31]
Mimi Rocha
I can't help to be skeptical of what the agenda is. What is it that they Southern District of New York right now is supposedly doing? Please release the records. Stop making survivors fight alone for the truth that should have protected us in this first place. Even if you were going to say, okay, Southern District of New York, go look at these emails that you haven't reviewed before in combination with everything you did before. You don't say go look at these three people or these four people because they're the Democrats. You say go look. See where it takes you. See where the evidence, if there's evidence in there, takes you.
- [02:14]
Dalia Lithwick
This past week has brought yet more inklings of hope and change through legal and Democratic levers, but also that eerie sense that we have been here before to no effect as survivors of Jeffrey Epstein's abuses spoke movingly again this week, imploring the nation to take the notion of justice seriously. President Donald Trump, the dog that didn't bark. Epstein asked his attorney General, Pam Bondi, to open up a criminal investigation, but only into Democrats mentioned in the emails. Each step toward truth obscured in a cloud of dust and misdirection. In a courtroom in Virginia this week, Trump's newly minted U.S. attorney, Lindsey Halligan was called on to answer for her sloppy, half baked indictment of former FBI Director James Comey. Her conduct was so brazen, the DOJ's representations so shameless, gasps could reportedly be heard throughout the courtroom. For those who just keep bringing law to a knife fight, law seems to be winning. And judges are losing patience with the Justice Department that has failed time and time and time again to honor the demands of truth. On this week's show, we're going to try to claw a path back to the law and truth and the norms undergirding the very scaffolding of democracy at the Justice Department and in courts across the land, with expert help from Mimi Rocha. Mimi is a former district attorney for Westchester County. She previously served as an Assistant U.S. attorney and Division chief for the Southern District of New York. She is currently an adjunct professor at Fordham School of Law. She's a CNN contributor. She writes for both the Contrarian and for Cafe. She's also at work on a forthcoming about the folks inside and outside the Justice Department fighting to uphold its core values. Mimi, it's been a long time since we've had you on the show. Welcome back.
- [04:18]
Mimi Rocha
Thank you. It's so good to be here with you. I listen every week just so you know, and I always learn something.
- [04:25]
Dalia Lithwick
Well, I wanna learn something from you because as I said to you right before we started taping, some of the Halligan stuff is so weedy. And I really feel like unless you were bor with the manual in your hand, it's hard to discern which parts of this are kind of Keystone Cop and which parts are really very serious. So I want you to walk us through it. But before we do that, I thought we'd start with the Epstein files. There is raging out there, a vigorous, I think political ends driven debate about whether any of this even matters. And the cynics keep saying this isn't going to change anything and nothing sticks to Donald Trump and why are we bothering? And so I just wanted to open by asking you first, as a former prosecutor, but also as a why we are bothering to pursue this and why it matters as much as it does.
- [05:16]
Mimi Rocha
So I think that's a great question and I Think the answer, in short, to does it matter? Is what your particular goal is when you're looking at it. And we, meaning you and I, and many women and men, frankly, have to look at it, are looking at it through the eyes of the survivors and. And through their eyes. This has been incredibly important, and it has been incredibly successful. I mean, I have been watching them, as I'm sure you have, over the past few days, since the Congress and Senate, you know, passed the bill to release the files. Let's put aside what's going to happen next. Let's just focus on that. They were giddy. They were smiling ear to ear. There were tears. They have accomplished something they never thought would be accomplished, and certainly not this quickly and certainly not this unanimously. And you can point to all sorts of things that, you know, contributed to it, but 90% of it was them and their voices and them coming together and speaking together and having the power of, you know, the sisterhood. This isn't just about the process and the files. Yes, that is important, too, and we can talk about that. But it's also about getting to this moment of empowering them and feeling like they have some power and frankly, giving everybody who is not happy with the way government is going right now a feeling like there is a way to take some control back and take some power back. And it comes from community, really, and it comes from partnerships and a very grassroots level. I think that's a really important point, that they feel already that they have achieved something and so empowered.
- [07:12]
Dalia Lithwick
And I want to just take a slight detour to note, you and I and Joyce Vance and Rachel Foster wrote about this a few weeks ago, and you and Joyce came at it as former prosecutors. Rachel is somebody who's been thinking about women and violent sex crimes for a very long time, and me as a reporter, and I think we came together to write that every single time we get in this spin cycle of, like, ooh, Prince Andrew, ooh, Larry Summers, you know, we get so caught up in telling the story of, like, you know, Colonel Mustard in the, like, ballroom with the lead pipe, and we forget it's not a story about them. And the sort of the fall of the great man is so much a part of the problem, both legally and as a narrative matter. And like, exactly what you just said, Mimi, I think is really essential, which is the justice system doesn't exist for those men. It exists for these survivors, many of whom, and we noted this in the piece, whose lives were destroyed. I mean, who really were isolated and shamed and Threatened and abused and attacked at every level, and who didn't have the power of coming together in a huge group until they did. And that's the story, the legal story that should be told. And yet we keep getting caught up right in this whodunit.
- [08:37]
Mimi Rocha
Yeah, I heard one of them talking about the institutional failures. Right. Their point is, this isn't about Donald Trump. Actually, like one of them said, I voted for you. This isn't about you, Donald Trump. Stop trying to block this. This is about five administrations. And they went through Democrat, Republican. All five of these administrations failed us because there was no real accountability. I take a little tiny bit of issue with that. I'll be defensive about the Southern District of New York, but their point is absolutely correct. I mean, we made this point in our article a societal failure, an institutional failure, a failure of the justice system that really, until now, their voices were not heard. And so I think one good thing, there's, you know, a silver lining to come out of this is that people who never would have paid attention to this before, maybe for totally wrong reasons, are paying attention and are hearing survivors of sexual assault talk about what this process has been like, how ignored they have felt, how dismissed they were, and how the system does protect very often, not all the time, but very often protects rich, powerful men who are usually the abusers. And how many people have to sort of be looking the other way or burying their head in the sand at best, to enable it for it to go on as long as it did and as widespread as it did? And so that's one other thing I think we can say has already happened, is that people who wouldn't have thought about that or paid attention to it or believed it are. And that's really important.
- [10:21]
Dalia Lithwick
I think that's the answer I was trying to pick my way toward when I was watching the Raft of. Oh, here we go. Here's another round of Me too. You know, we watched it ebb and flow with Weinstein, and we've watched it ebb and flow, and we've all, you know, indulged these angry women. And then there's a backlash. And I think what I'm hearing you say, and I couldn't agree more, not surprisingly, is that this has nothing to do with an ebb and flow of caring about what women think, which, you know, every five years, like an alarm clock, we're like, oh, I guess it's time to care what women think. This is about a massive systemic failure that continues to persist in the legal system that needs to be Corrected. And that it's not like, oh, the angry women are posting pictures of themselves when they're 14. Again, it's not that.
- [11:12]
Mimi Rocha
Right? No. And look, I've seen it as a woman and I've seen it as a prosecutor. I mean, there have been times, particularly as da, but even as a federal prosecutor, where I knew that if I wasn't involved in something, it wasn't going anywhere. And not because anyone was a bad actor or trying intentionally, but they just didn't understand what the victims were saying or how it needed to be handled, or, you know, they just couldn't put themselves in their shoes. And so it was not treated with the same seriousness as other kinds of crimes. And I think that's a big part of what happened here. It was back in the early 90s that victims first started coming forward. And I do think, you know, I mean, we don't have to go through the whole history of the case, but there's no question that these women were treated at various points as they were involved in something bad. Right. They either consented to this or they were sort of prostitutes. They were getting something out of this. They weren't treated like victims, and they were victims of a crime 100%. And that is the point we're at now, that we're still trying to get people in, you know, the general public, but also law enforcement to understand and see. And I think it's still very much a process. But hearing them speak out on such a public stage in such a powerful way, and seeing them, frankly, as adults, talking about how their childhoods, their teenage years were destroyed and how it impacted their life is something that a lot of people just have never heard before. So I think it is really important.
- [12:58]
Dalia Lithwick
Mimi, having just firmly established that this conversation transcends the nuts and bolts of what's gonna happen next. The files. I do wanna ask kind of nuts and bolts, what's gonna happen next question. Because assuming that the whole truth social. Dear Pam, let last week really becomes the basis by which Trump tells his chief law enforcement officer, who I guess is also his personal injury attorney, Pam Bondi, to investigate Epstein's, quote, involvement and relationship with Bill Clinton and Larry Summers and Reid Hoffman and J.P. morgan and many other people and institutions. Is the point of this to stymie the ongoing quest, the now successful quest to get those files released? Bondi certainly said DOJ would release the files within 30 days as Trump signed, but she also suggested that they might just hold us up because she's opened an investigation into the Democrats now, so I guess it's a little bit of a two part question. Will it have the effect of stalling this whole thing out? And back to my first question, it still matters anyway, right?
- [14:18]
Mimi Rocha
I'll answer the second part first. Yes, I mean, it still matters for all the reasons we said that we have even gotten to this point. And the answer on the files is it very well could end up giving them an excuse to try to prevent releasing them or releasing them in such a redacted way or delaying the release or something like that. However, I think part one is relevant to part two because it has been up until now in this Trump administration that they say something and whether it is true or not, we move on. Right? Like the news cycle moves on. There's, it's the whole flood the zone thing and there's another crisis and we move on. This one, as we've talked about, you know, for better or worse, just keeps coming back. And so it very well may delay it. There may even be litigation over it. There may have to be a judge involved. But I don't think that these legislators who got it to this point and these women and frankly, a pretty big portion of the public who now is like, what are you hiding? Is going to just leave it at that. So, yes, I mean, I do think it can have that effect. I just, something tells me though that that won't be the end of the story. But I mean, we can't overlook how crazy it is. I know we're like so immune to it at this point. But how absolutely, I mean, inappropriate doesn't even do it. That once again, Donald Trump is directing an investigation. His whole I control the doj, okay, we can talk about, you know, the various ways in which the President has control over the doj, but I do not understand any rational person to be saying that he is supposed to decide what investigations happen. And here he did that. And it's not just that he said, hey, there's these new emails, go look at these. Which, first of all, I wouldn't call that an investigation. That's not an investigation. That is not how law enforcement would categorize that. They would call it a review, an assessment. Is there something new here that you know is a lead that we should follow up on? If we take what's in these emails that we haven't looked at before in combination with everything we've done before that is worthy then of opening an investigation. So this whole idea that they're, quote, doing an investigation, I mean, that's part of what I meant about they can try to postponed. But are they really doing. I mean, is this a grand jury investigation? Like, what is it that the Southern District of New York right now is supposedly doing? And as you pointed out in quoting the language, there's nothing even criminal in this, quote, referral. Right, because the referral is his truth Social post, because that's all Pam Bondi reposted. She said, okay, yeah, we'll do that. Well, that quote, unquote, I'm putting in air quotes. That is simply about people's relationships with Epstein, which I am all in favor of that coming out. It's just that's not something a federal prosecutor's office, you know, spends a lot of time, if any, time looking at. So this whole notion that they are doing an investigation is not real. It is also completely inappropriate that it came from the President and that she, within hours, it was a very short amount of time, said, sure, yeah. Without doing their own independence determination. I know this all sounds really naive and quaint, but, like, we have to keep saying that this is not how it works. And then finally, that even if you were going to say, okay, Southern District of New York, go look at these emails that you haven't reviewed before in combination with everything you did before, you don't say, go look at these three people or these four people because they're the Democrats. You say, go look. See where it takes you. See where the evidence, if there's evidence in there, takes you. So all of this is just so highly irregular, which, yes. Points to the idea that, one, it was both a way for Trump to get a distraction and from what was a really, you know, bad couple of days for him over Epstein, and two, to try to set up a excuse. But I, I don't think it should work. And I really hope that Jay Clayton, the U.S. attorney in the Southern District of New York, will not allow the Southern District to be used as a pawn in this political gamesmanship.
- [18:35]
Dalia Lithwick
It's fascinating to me, Mimi, that only a few states over, we have the Justice Department saying, what? We don't do vindictive prosecutions. We what? And here's Trump saying, these are the names of the people that I would like you to go after. Dear Pam.
- [18:53]
Mimi Rocha
Right. And that came up. Yeah. In the comey hearing. I mean, we can talk about that. But his lawyer, you know, of course, was like, hey, by the way.
- [19:01]
Dalia Lithwick
So I think you've answered my question about what Jay Clayton is even meant to be investigating, because I am as baffled as you are based on that. But I know that you know the players in the Southern District of New York pretty well. And this is not known to be an office that, like, screws around, that plays fast and loose. It's a very, very serious place. And I wonder, what is the vibe in there as all this goes down? Is there a sense that, you know, as with, in other jurisdictions, I guess we just have to do what Pam Bondi tells us to do.
- [19:36]
Mimi Rocha
Yeah, I mean, I think that, too, is very much an open question in the sense of Jay Clayton is, you know, he's a real lawyer. He's a part of the New York legal community, et cetera, et cetera. He's never been a prosecutor, though. And so I don't know how much. I mean, I know he has people around him who absolutely know what is normal and. And what should and shouldn't happen. And I'm sure that they are advising him whether he will take that or not. And there have been some warning signs about him. I mean, he has given some interviews lately, which in and of itself, doing interviews, you know, that's not so common when you're the sitting U.S. attorney. But he's made some kind of political statements that raised a lot of eyebrows, including basically, you know, saying that the previous Justice Department, the Biden Justice Department, was politicized without pointing to anything in particular. It was a very Trumpian statement. It was. They were political. You know, people should have said something. That is not something a sitting U.S. attorney should be saying. He also did not at least publicly do anything to defend Maureen Comey. Apparently, there are people saying that he did something behind the scenes. I don't know what is, you know, actually, like, the full story or not. But I don't. I'm not gonna sit here and dispute that. I'm gonna say he should have said something because she is that kind of prosecutor. And it was such a baseless, totally vindictive firing that he should have at least said, Marin Comey, you know, was a great public servant or. Or something. Even if he wasn't going to say this is wrong, there are things he could have done and he didn't. And I'm not alone in this. There are many, many, many alums and people in the office who feel this way and feel that he hasn't had their back. So it raises the tension of, okay, now comes a real pressure point potentially, and how are you going to react? Are you going to react as, you know, straight down the line, Southern District U.S. attorney who is going to do what you would do in any Other investigation, which in this case, now, in this moment, would be. I use the word investigation, but again, I don't. It would be assessing the emails, seeing if there's something new in combination with everything they knew before that would allow them to actually open a real criminal investigation. Because, remember, the emails, as you know, are not evidence in and of themselves. You need. If you're going to bring a sex trafficking case, you need victims, and they had those in the trial against Maxwell. But there was a limit because, you know, not everyone wants to come forward and tell their story publicly or tell their story in court. There's all sorts of evidentiary issues. So there's just a sort of legal assessment that would need to be done. Are they going to do that? And then if they find nothing, say, all right, we looked, we're done. You know, we're back to where we were before, which is, we charged Epstein, we charged Maxwell. That's all we can do. And what happens if they do find something incriminating about Trump? Are they gonna. Are they gonna tell Bondi that? So there are a lot of pressure points here where things could go two different ways. And I absolutely have faith in the people in the office, the line prosecutors, the people advising Clayton who are office veterans, the agents who have worked on the case before. But, you know, he is in a different situation, and I think we're going to have to see how he handles it. And, you know, if it comes to it, is he going to do what Danielle Sassoon did? Is he going to resign if it comes to that or not? And, you know, we shall see more.
- [23:19]
Dalia Lithwick
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- [25:03]
Planned Parenthood Representative
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- [25:57]
Dalia Lithwick
Let'S return now to my conversation with Mimi Rocha. Mimi, will you just remind us what happened to Maureen Comey? Because there are so many Comeys floating around right now. In addition to being former FBI Director James Comey's daughter, she's also a career prosecutor. And of course you worked with her. Can you remind us what happened there?
- [26:18]
Mimi Rocha
So Maureen had been a prosecutor in AUSA in Southern District of New York for at least nine years, maybe, maybe more. She was an excellent prosecutor. Like I supervised her her first two years in the office. So from day one, she was a star and she only got better from there. She's a smart, incredibly capable, go getter kind of prosecutor. She was a leader in the office. I mean, literally, she was a supervisor. She led the violent crimes unit. She had leadership positions in the office. And she was someone that was universally looked up to by younger ausas and her peers and well thought of by everybody who supervised her. And she has charged some of the biggest cases in the office, including a quadruple murder against a guy who the FBI wanted to get and local law enforcement for years. They knew that he had committed this crime and they couldn't prove it. And she just took the reins and went with it and was able to actually charge the case and he was convicted at trial. She charged Robert Hayden, a gynecologist in New York who had sexually assaulted many women she was the definition of a successful prosecutor. And then one day after the Diddy case trial ended, she got an email saying basically you're fired out of the blue, and her phone and everything was turned off. She was never given an explanation because there is no explanation. Right. It was pursuant to Article 2. It's the unwritten subtext is your name is Kali and she is now suing the government for wrongful termination. And it's a very important case in its own right because it will probably help define the boundaries of what can the executive do in terms of employees like ausas who are at will to a certain extent, but also cannot be fired for improper reasons, which I certainly think is what this was.
- [28:28]
Dalia Lithwick
Mimi, you've spent a lot of time writing and thinking about the deeply improper proffer by Deputy Attorney General Todd Blanche back in August, who just swanned and had a little chat with convicted Epstein co conspirator Ghislaine Maxwell. What can you tell me, having seen now all these emails that have been released in the last couple of weeks from the Epstein estate in the last days, as we're metabolizing what all that means, what does it mean in terms of what the hell Todd Blanche was doing there and why? As I think everybody has now noted, she was moved to a nice cozy prison and offered all sorts of perks and she has playtime with a little puppy. And I mean, this is so irregular, but again, I think it makes us feel hinky, but I think you can tell us how deeply improper this all is.
- [29:34]
Mimi Rocha
Yeah, I mean, Todd's so called proffer, he called it a proffer of Ghislaine Maxwell was not a proffer at all. A proffer is a truth seeking interview where the government frankly holds the leverage and says, we want to get information from you, we need you to be 100% truthful. And you know, you want something from us, you want a benefit from us, but we're not going to give it to you until we are convinced. Unless and until, and maybe maybe then not even, but unless and until you are truthful and give us information that we can work with, usually to charge other people, although, you know, there's some exceptions to that, may just be information that they need for various other reasons. It was so obviously not that on its face, based on the questions he asked and the way he asked the questions, there was no pressing her. He was in fact, at one point, I remember this one question about her money that she had received from Epstein, which was part of the evidence at trial that you know, she was being paid lots and lots of money to do his bidding in this sex trafficking ring. And Todd offered up to her in the proffer. Why don't you explain that to me? What's your take on that? Basically, I mean, now I'm paraphrasing, but it wasn't far from that. And she said, oh, well, you know, those were loans. And it was this. And they were just looking at the bank records. They didn't ask me what they were for, was she called it a loan or loans. And he said, oh, okay. So they just saw the documents, but they didn't have your explanation. And he kept talking about the government's allegations. The government proved this at trial. I mean, these were actual proven elements of a crime, actually. And so it was just beyond jaw dropping to have anyone, let alone the number two person, by the way, who knows exactly I have, have seen Todd Blanche conduct proffers. He knows how to conduct a proffer, trust me. He absolutely knows how to get at the truth. And he was not trying to here. So now we have these emails. One of the first things I thought of, and many people started saying when we saw the emails was, wait, why didn't Todd Blanche ask her about these? Right. Let's take the one example that was talked a lot about about Trump, of he was at the house with, with a victim for many hours. And Maxwell says, yeah, I was thinking about that. Okay, what, like, what does that mean? Does that mean she was there when Trump was there? Does that mean, I mean, you know, this is Epstein's version, but clearly now she seems to be in the email kind of corroborating what Epstein is saying about Trump being there. Does it mean Epstein had told her about it? I mean, what does that mean? That is like this question looming in the air that as, as an investigator, as a prosecutor, you were dying to ask her. And so at first we thought, wow, I mean, you know, what a sham that he didn't ask her. Okay, so then Tut feels the need to publicly tweet back to George Conway because he's got to get it out there somehow because he realizes how bad this looks. So he publicly tweets that the Epstein estate, quote, hid these from the government, and so he didn't have them before. Okay, I don't know. I have no idea who hid what or gave what or whatever. But what I do know is that as a prosecutor, to go in and supposedly be seeking the truth and not have someone's full emails is. And frankly, they must have had some Emails. I mean, no one's claiming they never had any emails. He didn't ask her about one single email. So that is just further proof how much. This was not a truth seeking exercise. It's frankly malpractice as a prosecutor to think that you could go in and question something, but the first thing you do is you get their emails and if you don't think you have all of them, you know what you do, you don't go in, you just don't. Or you ask them for the email. She has access. They were her emails she could have gotten. Well, we're going to come talk to you, but we want all your emails first. Have someone send them to us. I mean, there are different ways they could have gone about it. So it just reinforces how much that was, was some kind of sham. What was it for? To your other question, I mean, it sure seems like she did give them something that they wanted because she got a reward. What was the thing she gave them that they wanted? It seems to be the only thing that came out of that that they remotely seemed interested in was the statement that Donald Trump did nothing inappropriate. You know, I don't want to quote her, but it was a nonsense statement that from an evidentiary point of view meant nothing that there were a hundred follow ups to. But they took it, they said we got it and here's your, you know, puppy prison.
- [34:23]
Dalia Lithwick
My goodness, that's depressing. But as you said, it's so. It's such a crack up that he's referencing the government as though that's not him. Right. Because he's on her team, not an adversarial proposition. Right.
- [34:37]
Mimi Rocha
He was acting as Trump's attorney there, not as everybody's Trump's attorney.
- [34:41]
Dalia Lithwick
I know, yeah. Raise your hand if you're not Donald Trump's attorney. And like he's right there on the team. I wanna move from tampering to tampering. And I think we have to talk about what in the ever loving hell is going on with the Comey prosecution now. We're talking about Jim Comey prosecution. To recap in September of this year, then U.S. attorney for the Eastern District of Virginia, Eric Siebert, well respected career prosecutor, said there was insufficient evidence to indict Comey, the former director of the FBI. Under pressure from Trump, Siebert then resigned on September 19th. Former insurance attorney and Trump favorite lawyer Lindsey Halligan was mashed into place just before the statute of limitations could run query whether that appointment was even proper. And Halligan coughs up an indictment runs to the grand jury to present it herself. Can you again, just tell me how deeply irregular and cartoonish this all is? Because I know that this is really nuts, but I can't quite figure out why.
- [35:46]
Mimi Rocha
So there are so many things wrong with how the indictment was obtained that started to become apparent immediately and that becomes relevant later. But first of all, quite frankly, many of us were surprised that an indictment was obtained. Why? Not? Just because we're like, oh, Jim Comey, he's innocent. This is what I think or feel. But because. And this is really where it all starts. The prosecutors in the Eastern District of Virginia office, a very serious, I'll say second to the Southern District of New York, a very serious U.S. attorney's office with incredibly competent people who do very big and serious cases all the time. They said from the ground on up to Eric Siebert, the U.S. attorney who was picked by Trump, not some deep state Democrat, although he later tried to accuse him of that. A career prosecutor who was picked by him, who was there, who, who was in many ways, you know, following the Trump agenda. But they all said there is not a case here to bring. We do not believe there is probable cause. This should not go to a grand jury. And that is something that happens, I won't say a lot, but. But it happens in U.S. attorney's offices and state prosecutor offices around the country all the time. I will say a lot, actually. Right. Because prosecutors, one, have a certain standard of evidence they need, which, yes, for a grand jury, is probable cause, whether you can get an indictment. But you also, under the Justice Manual, are not actually supposed to do it, even if you have probable cause, if you don't think that you can get a conviction at trial. And then there's this whole other thing called prosecutorial discretion, that even if I could get a conviction, I could get an indictment, I could get a conviction. And is this an indictment that should be brought for a whole bunch of different reasons that you analyze? And so we don't know exactly what was in what we now know was a declination memo, which is a written memo of reasons why a case should not be brought. And we'll get to later, the exchange with the judge there had been reporting, and now we know from the assigned prosecutor's mouth that there is such a memo. We don't know exactly what was in it. Right. But it was serious enough that the U.S. attorney, Eric Siebert, at some point said, if you're making me go ahead with this, leaving my job, that is, I mean, we're almost getting again, immune to this idea of US Attorneys resigning. This hadn't happened before. Danielle Sassoon. I'm pretty sure, based on my research so far from my book, that she is the first sitting U.S. attorney to resign over the merits of a case. There have been threats of it, there have been other firings, There have been resignations at the attorney general, deputy attorney general level back in Watergate, but not a sitting U.S. attorney overseeing an office. And now you have Eric Siebert doing it. And so right away, everyone thought, whoa, that is just red flags, beyond red flags. So then when a grand jury, very quickly, two days later, I think returned an indictment, we all thought, well, that's weird. Okay? I mean, everyone says you can indict a ham sandwich. So maybe, but kind of wonder how she instructed them. I mean, these were questions we started immediately asking, what legal instructions did she give them. And by the way, we also know that she went in there by herself. Why did she go in there by herself? Because no one in the Eastern District of Virginia would go in with her. That is incredible to me that your new boss comes in and says, I'm going to do this. Who wants to come with me? I need a second hand. Right? Because of course she does. She's an insurance lawyer. She's never been in the grand jury. Nobody will go in with her. That is why she went in alone. That is remarkable. So you start to wonder, well, how did she get this indictment? Did she instruct them properly on the law? What kind of evidence did she put in from? And the law on obstruction, false statement cases is. It's actually really complicated. And it comes down to intent. And here there was a whole statute of limitations issue and two different sets of questions and relating back to the first set of questions. So this isn't like a really straightforward, you know, drug possession case that you're putting in. I'm not even saying that would be easy for someone to do on the first time. There's a reason why prosecutors offices, like our office, had a rule first three times you go on a grand jury, you have to have someone with you who has done it before. And the day that the indictment was returned, the magistrate judge was asking all sorts of questions properly about why does this say count three and there is no count three? And there's two different indictments here. And, you know, Halligan tried to sort of, oh, you know, make it seem like no big deal. But now fast forward later, all of this is turning out to be a big deal. And frankly, the biggest deal is the instructions issue of how she instructed the grand jury.
- [40:43]
Dalia Lithwick
Well, let's just go there then, because now I think we're caught up. And we did kind of toggle from tragedy to farce this week in, you know, a courtroom with the federal judge overseeing this case trying, as you just suggested, maybe to understand the validity of the indictment itself and the process by which they opted to charge Comey. And I would just love, again, for you to walk us through what I know it was a very, very technical hearing, but what was revealed at this hearing on Wednesday.
- [41:17]
Mimi Rocha
So there's two different hearings to talk about this week, right. The one on Wednesday is the case in front of Judge Nakmanoff, the district court judge who is overseeing the motion that Comey's team has made to dismiss the indictment based on vindictive prosecution, essentially. And there's various other parts, but that's the essence of it. And this was a hearing essentially to discuss things leading up to the deciding that motion, including whether Comey's team would get the full grand jury transcript. But related to that was a hearing in front of the magistrate judge sometime this week about the issue of Halligan's appointment and whether she was properly appointed, because that was referred to a magistrate judge. And in that hearing, it came out that the judge had reviewed the grand jury transcript enough to reveal, which I think is interesting publicly, that Halligan had erroneously instructed the grand jury on the substance. Right. So at the second hearing, the issue was the procedure of getting the indictment itself. And the issue was that, in fact, the indictment that was returned to the magistrate was not an indictment that was ever shown to the full grand jury. There are all sorts of procedural and technical. I mean, it's just horrible and it's sloppy and it's all sorts of things. There, I think, are a lot of different views amongst, you know, former prosecutors, legal eagles, professors, et cetera, as to whether that in and of itself should lead to dismissal. But it doesn't matter, frankly, the answer to that question, because I think the instruction to the grand jury issue is pretty obviously much more consequential and substantive. And all of this goes to the heart of the vindictiveness as well, which we'll get to in a second. But on the substance, she instructed the grand jury one that Comey, in response to some questions from the grand jury, who we know rejected at least one count and voted the other counts by very thin margins, and they were asking questions, and the answers to her questions were. Were absolutely legally incorrect and very prejudicial. She said, comey will have to testify at trial and explain that whatever it was that was being asked about, absolutely not. As you know, and most people who watch, I don't know Law and Order know a defendant never has to testify in their own defense. It's like a constitutional right. But you don't have to incriminate yourself. So, no, he would never have to. And that's the kind of error that at a trial, if you said that in a jury address, a judge would cut you off immediately. It would be an issue on appeal, you, the prosecutor. So the fact that you said it to the grand jury, where no one could challenge it, no one could hear it, that is very prejudicial. And then the second thing she said was, again, I think in response to a question, essentially, this isn't all of our evidence. We have other evidence, too, and it's better evidence. Yeah, better evidence.
- [44:32]
Dalia Lithwick
We have such good evidence that we're not showing.
- [44:34]
Mimi Rocha
You know, take my word for it. I mean, you're not a witness. You're not supposed to testify. You're not. I mean, there's so, again, so many things wrong with it. So I think that's going to end up being hugely consequential as well. And all of this goes to. Right. So there are three main things to highlight here. One is what we said about the original career prosecutor saying, don't. This is not a case that should be brought under normal, everything normal doj. Two, we have very legally erroneous and prejudicial instructions from, you know, insurance lawyer turned prosecutor who didn't know what she was doing. And three, we have a very sloppy at best and possibly just totally defective indictment. And that's. This is all even putting aside the is she properly appointed and all that, which is also an issue. All of this is relevant also to the vindictive prosecution issue because the reason they're in this mess is because they were up against the statute of limitations. They were going to get this indictment no matter what. You know, when the career prosecutor said no, he put in his political loyalist. No time to consult, no one to consult with, because the people who knew the best were not going to help on this to their extreme credit. And then you have prosecutors coming in from another district to handle the case in court who don't know the history and don't know everything that happened, which is also, you know, highly irregular. That does not happen. So so many things that go to the vindictive state of mind, if you will, of who. Well, maybe Lindsey Halligan. But Lindsay Halligan wasn't doing this because she doesn't like homies. She was doing this because the president directed her. And so that's why, I mean, I ultimately think, you know, there was a great vindictive prosecution claimed before all this came out. And now it's like, I don't know how this does not get granted. I'm or many of these bases, but certainly that and it shows the perils of what happens when the Justice Department is being run not by career people who are thinking about the law and the evidence and you know, what's right, what's wrong, but just what Donald Trump wants. That is a real this is, this is how it turns out.
- [47:02]
Dalia Lithwick
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- [48:05]
Skye Perryman
Know what to do with courage, but we do. I'm Skye Perryman, President and CEO of Democracy Forward. Since Inauguration Day, our lawyers have been fighting for people and communities challenging the Trump Vance administration's unlawful agenda. We've won legal victories already, but this fight isn't just ours. It belongs to the people. And we know the cost of silence is greater than the cost of action. So join us. Add your courage to the Cause@DemocracyForward.org.
- [48:34]
Planned Parenthood Representative
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- [49:09]
Dalia Lithwick
We are back with Mimi Rocha. It's funny, Mimi, because I'm thinking of our mutual friend Joyce Vance, just a few weeks ago on this show saying, oh, my God, this vindictive prosecution case is. This is like they don't usually win. And this one is really. And all of the evidence that you've just sort of amassed to say, it's only stronger. Now I'm also, and just indulge me for four seconds remembering when my cousin was a very small child and she was doing some sewing project at school and ended up sewing the project directly onto her own skirt. She was just going too fast and all the seams and all the broken thread and everything was showing. And there is a weird way in which. Thank you for the indulgence. I apologize in advance to my cousin. But, like, this is the problem, right? You can't do fast, vindictive, vengeful work at the DOJ and not eventually get caught out. And in some sense, this is kind of turning over the garment and seeing all of the ripped threads and, you know, the mess and the lying and the sloppy work. And I guess I would love to talk about the other side of that, which, and I know you've been thinking about this too, which is the judges, right? Because we have seen absolutely across the boards this development in recent weeks where judges around the country of all ideological backgrounds are just openly starting to say, I just don't believe DOJ lawyers. I reject the presumption of regularity. Our friend Ryan Goodman has astonishing new statistics out about judges across the country finding non compliance 26 cases, courts mistrusting government information, 60 cases, courts finding arbitrary and capricious government conduct, 68 cases like this is staggering, staggering coming out of the Justice Department. On the one hand, you know, we exult in the fact finding and the truth of judges saying, no, I just reject the idea that you're telling me the truth right now. On the other, this is just annihilating decades of earned trust within the department. And I guess I would just love to hear, as somebody who has come up through the department, who reveres the department, what those two sides of that coin look like.
- [51:39]
Mimi Rocha
It's unfathomable. And I have talked to so many former prosecutors who can't believe that exactly what you said, that integrity is so hard to earn and so easy to lose. And this is not just the integrity of one person. This is the integrity of the entire department. You knew when you walked in and you said, I am so and so representing the government or representing the United States of America, what you said carried credibility. It didn't mean you could say anything, and you may never be questioned on it or anything. But there was, yeah, a presumption that you were there to do the right thing, that you would tell the truth. I mean, it's. It's an ethical rule to have candor with the court, but it's also just, like, part of your job, especially if you're a prosecutor. So it is really sad to see. And the reporting from the hearing on Wednesday was that, you know, the judge called Lindsey Halligan up, called up the prosecutor, Asa Lemon from North Carolina, who came down to do this case, you know, called them up, up and question them. And it's almost like they are in the shoes of kind of how usually a defense attorney is, you know, tap dancing around, not the government. The judge was asking. He was asking Lemon, was there a declination memo on the Comey case, which we've talked about now in this conversation? And Lemon wouldn't answer, was just kind of dodging, and there was something written and, you know, blah, blah, and maybe. And I kind, you know, I've reviewed some written material, but wouldn't use the word. And the judge said, look, you're here. I am asking you a yes or no question. And eventually Lennon said yes. And the judge said, were you instructed or told not to tell the court about this memoir memo? And Lemon said, yes, by the deputy attorney general. That's Todd Blanche. I mean, apparently there were gasps in the courtroom because you don't have to be a prosecutor or a lawyer to understand that somebody instructing a lawyer to not be fully truthful with the court is a really bad thing. That would be bad no matter what, but it's not inconsequential. The reason, as we've discussed in this conversation, I believe that they didn't want to confirm the existence of that is because it goes directly to the vindictiveness. If all the prosecutors were saying, don't bring this case, and that was overruled. It was overruled because Trump said to or told them to do it, notwithstanding anything else. Right. And so it goes to the heart of the vindictiveness question. So I do think so far what we've seen is an example of the rushed slop, be at best and dishonest nature of what is happening in the courts in some small way already coming back to, I'll say, haunt this doj. We'll see what the consequences exactly are. But of course, as you and I have discussed, what will happen is that the judges will then be targeted and accused of being biased Even though they are absolutely being put in these extraordinary circumstances that they aren't usually in, of having to question and distrust the government. And so when they call the government out, it's, I think, going to be for good reason as. As it has been. But we know what the reaction is. The reaction is, oh, you're just biased judges. In fact, Todd Bloach has said that publicly and been called out by bar associations for it, to which he said lol on Twitter. It's not that no prosecutor, government attorney ever made a misstatement, you know, unintentionally or intentionally, I'll even say. But if you were even remotely called out on by a judge, if a judge started to, you know, to say, I'm not sure I'm buying this, or, you know, that seems kind of hinky to me. Or you. I mean, the shame, the horror, the reaction would be to go and tell a supervisor to probably crawl up under your desk and hide and try to figure out a way for, you know, to salvage it, even if it was a completely innocent mistake. And that is just not the normal reaction that's been happening here. And that is part of what is also so unusual about this, is that when you get called out by a judge about your candor, your reaction should be to fix. And instead they seem to be kind of doubling down.
- [56:31]
Dalia Lithwick
And it's interesting we're not going to have time today to even touch on the investigation into the investigation of these mortgage fraud charges against Adam Schiff and Tish James. Like, I mean, it's increasingly clear that the sloppiness and the vindictiveness and the high speed, we don't care what we break because we gotta get these folks is backfiring and getting caught at. And I a little bit love where I think you're ending here, Mimi, but I want you to reaffirm that this is where you're ending, which is, of course, this is a mortal blow to the Justice Department. And I just want to commend to people the New York Times piece this week about what's happening inside the Justice Department, this climate of fear and reprisals and retribution. But I think I'm also hearing you say that, on balance, the important thing is that the truth must out. You know, there may require a generation of work to repair the damage to the Justice Department, but that the thing we have to protect right now is the truth. And if the judges are working in tandem with lawyers and journalists and all the good people who are calling this out, that has to be the end game right now. And you know, we'll think about fixing the Justice Department tomorrow.
- [57:51]
Mimi Rocha
Yeah. And I would just add to that list and to prosecutors who have repeatedly done the right thing, including and seems like an entire office of Eastern District of Virginia who didn't want any part of this case and the safeguards that we have in our justice system to protect innocent people, I'm not going to say they worked totally, but those are part of what you see peeking through with the judges, with prosecutors who use their good judgment and discretion with the rules about grand juries, all of that. So yes, I will take that little bit of, little bit of hope.
- [58:29]
Dalia Lithwick
Mimi Rocca is a former district attorney for Westchester County. She previously served as an Assistant U.S. attorney and Division chief in the Southern District of New York. She right now is an adjunct professor at Fordham School of Law. You can see her on cnn. You can read her writing at the Contrarian and at Cafe. And she is writing a book about all of this and much more. And to the extent that someday the people who stood up for the Justice Department get feted, it will be because of the work of people like Mimi. Mimi, it is such a treat to have you. You are, as I said, one of those voices that is perpetually in my head, even when you're not in my head. Thank you for your time and for your diligence about all this. I really, really appreciate getting a peek behind the curtain today. And I think for a lot of my listeners, this was an incredibly illuminating view of what the Clown Car really contains. Thank you.
- [59:28]
Mimi Rocha
Thank you, Dalia. This was great fun.
- [59:34]
Dalia Lithwick
That's all for this episode. Thank you so much for listening. If you're not a Slate plus member, we'll talk next week post turkey, possibly post trotting. But for our cherished Slate plus members, a jam packed bonus episode of Amicus awaits. Mark Stern and I are settling into the smokeless cigar bar to discuss a stunning decision ruling that the Pentagon's National Guard deployment in D.C. is unlawful and Judge Sarah Ellis's evisceration of the Border Patrol's claims of protesters provoking them to violence in Chicago. Also, Texas Gerrymander is headed to the Supreme Court with an unhinged descent in tow. And we are going to exclusively reveal exactly when SCOTUS plans to announce the big tariffs decision. If you want to join us for the bonus that keeps on giving, you can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify or visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. To all of our listeners plus and nonplussed, thank you so much for your letters and your questions. We are, as ever, really grateful for them. Keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort. Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Until then, take good of care Care and Happy Thanksgiving to you and yours.
- [61:41]
Skye Perryman
President Trump doesn't know what to do with courage, but we do. I'm Sky Perryman, president and CEO of Democracy Forward. Since Inauguration Day, our lawyers have been fighting for people and communities challenging the Trump Vance administration's unlawful agenda. We've won legal victories already. But this fight isn't just ours. It belongs to the people. And we know the cost of silence is greater than the cost of action. So join us. Add your courage to the cause@democracyforward.org.
- [62:10]
Dalia Lithwick
And.
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Mimi Rocha
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Dalia Lithwick
Is that guy with the binoculars watching us?
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Mimi Rocha
Cut the camera. They see us. Only pay for what you need@liberty mutual.com Savings ferry unwritten by Liberty Mutual Insurance.
- [62:36]
Dalia Lithwick
Company affiliates excludes Massachusetts.