B (2:26)

All right, let's step back for a second because we jumped right into it. I got eager, I suppose, but let's explain what exactly the charges, why they were delivered and how rare they are.

C (2:39)

Sure. So. So Comey is faced with two charges. What's interesting is they actually tried to bring three charges, but the grand jury rejected one of them. The two charges he faces, it's a false statements charge for a statement he made during congressional testimony in September 2020. Covid era investigation of the Russia probe. You know, you know, the Trump 2016 campaigns, links to Russia. Comey investigated that, and that's what he was testifying about. They think he lied about not just that probe broadly, but about whether he ever authorized anyone to give an anonymous statement to the press related to that probe. So that's the charge, the false statement. And then the second charge is an obstruction of Congress charge that doesn't specify what he obstructed about it. Similarly, they say it basically gave false testimony to the Senate Judiciary Committee in that same hearing, but they don't specify exactly what they're referring to in that charge.

B (3:37)

And I guess the other thing that we should add here is that the lead up to this was that the U.S. attorney in the Eastern District of Virginia where these charges were brought from was fired because he had looked into this and concluded that there was not a sound basis for charging Comey with these charges. And so Trump then fired him and appointed his personal attorney, Lindsey Halligan, who has no apparent background in this type of law. I think she was Florida insurance law, I think was her background.

C (4:08)

Never been a prosecutor before, never been.

B (4:10)

Prosecuted, and within a couple days, she files this indictment. The indictment's two pages long. How rare is that?

C (4:17)

I mean, you know, we love speaking indictments in the press because they tell us all the, the details and sort of what went into it a lot. I think there are some prosecutors who prefer these sort of more bare bones, like we're just going to give you the basic bare, bare minimum and we'll let the trial air out the rest of the details. But so the form of the document itself is not that unusual. But everything else about it is the fact that she, Lindsey Halligan, signed this document rather than a career prosecutor. That itself is extraordinary, almost never happens. And no one, no career person put their name on any part of this.

B (4:52)

In any, should we infer something from that, Kyle?

C (4:55)

I think it's almost too obvious to infer. I mean, no one was willing to sign off on this, at least at this juncture. And I'm curious when we may see the first career prosecutor attach themselves to this in any way.

B (5:08)

The other thing I wanted to touch on which you referenced was the fact that the grand jury did not, did reject one of the three counts. I was talking to someone about this and they said that's exceedingly rare for that to happen. I mean, we've noted, we've had some version of this in D.C. around some of the charges that the U.S. attorney in D.C. jeanne Pirro, has brought. But talk about the rarity of that.

C (5:31)

I mean, it's, it's really, we're almost desensitized to it because we've seen it happen a few times in D.C. as you mentioned. But it's so unbelievably rare. I mean, in a grand jury setting, everything is stacked in the prosecutor's favor. They don't, they, the witnesses don't have lawyers. They don't get cross examined. You just, you, everything is put on in the most favorable light possible for prosecutors. They don't have to show any defenses or, you know, exculpatory information. It's just designed to test a low threshold of can we put on a plausible case here? And so when a grand jury turns down a prosecutor under those circumstances, it tells you that case is really bad. Right. They got two charges here. They got two charges the grand jury turned down. One of them tells you that.

B (6:16)

What charge do they turn down exactly? Do you.

C (6:18)

It was another, it was a second false statements charge related to they said.

B (6:22)

There was two false statements that they want to pinpoint. And the grand jury looked at the evidence and said, actually that's just weak sauce. We're not going to.

C (6:28)

Exactly. And that one was, I think, a little more potent. It was about Hillary Clinton and whether she intended to use the Trump Russia probe to detract from her own investigation related to her email scandal. And they think that Comey said something false about that dynamic in his congressional testimony.

B (6:45)

Well, that's. So there's been a little bit of not a dispute, but it's a little unclear what the actual false statement Comey delivered or alleged false statement I should say Comey delivered. That is the basis for this indictment. There's Some question about whether it involves Andrew McCabe, and there's some question about whether involves this professor from Columbia, Rickman, who Comey was apparently very close with. What is your understanding about the specific allegation here?

C (7:12)

So I haven't gone through every word of his 2020 testimony yet. But there is a couple exchanges.

B (7:18)

It's 9:40, it's 9:45. I mean, come on, get on it.

C (7:22)

We'll get there. We'll get there. Josh is on it right now. But there were a few exchanges he had where members pressed him on both his contacts with the media and whether he ever authorized subordinates to have contact with the media in an anonymous capacity. There's one exchange he had with Ted Cruz that I think may be the.

B (7:39)

Focus of this where that's the Andy McCabe issue. And Ted Cruz does press him on during hearing. And if I'm remembering correctly, Comey says, I'm not going to dispute what Andy McCabe said to you, but I'm going to stand by my statement that I never authorized a leak to the press.

C (7:56)

Exactly. And, you know, they may have differing recollections. They may have, you know, have misunderstood each other, or they may not believe what the other one is saying. But the point is they, they both, they did contradict each other, and that's what Cruz was highlighting.

B (8:10)

And I believe the IG looked into this and kind of came down with, well, you know, you can't really tell because the only evidence we have is two people's recollections. But circumstantially, I think they, they sided with Comey's version of this. I guess it sort of leads to the question of, like, how, how is this case prosecutable if it comes down to, no, I didn't. Versus, yes, he did. I suppose they could ask the members of the media who were on the receiving end who their source was. Correct.

C (8:42)

I think given the posture of this Trump Justice Department, that's distinctly possible. That would potentially be a key source of source of evidence here. We haven't gotten there yet, but it's very possible. Yeah.

B (8:56)

The other thing that I'm kind of curious about is what role Trump's overt efforts to get this, get this indictment will play in the actual prosecution of Comey. I mean, here you have very clear evidence.

C (9:10)

Sneak preview. We're writing, we're writing a story right as we speak. It says the five challenges they're going to face to prosecuting this case, that's one of them. Selective prosecution. I mean, the fact that Trump has had a vendetta against Comey for years and then. But even that alone would not be enough to sink a case. It's very hard to prove selective prosecution. But the fact that we had that exchange you just mentioned Trump tweet. You know, Trump fires the prosecutor.

B (9:33)

He directed the AG to do this.

C (9:36)

And said, charge these people quickly. Do it now, and then it happens. You can't. It's hard to imagine a fact pattern that's more explicit than that. And the judge is going to have to look at that and say somehow say, that's not selective prosecution for this case to go forward.

B (9:51)

And also, I guess this is way down there. But how does Comey get a fair trial if the President is going to weigh in every single day as he did?

C (9:58)

Item number three on my list. That's Trump. You know, Trump's inability to refrain from commenting, and he's already blasted Comey in social media tonight. Typically, we see gag orders and things like that when these types of issues come into play. Trump himself had gag orders during his own criminal cases. This would be an example of where they say the government has to stop talking because you're going to corrupt the jury pool. Now, you know, stray comments here and there usually aren't enough. But if it's overwhelming, then Comey would have a clear case to say, you know, I have a hunch.

B (10:36)

I don't know what it's based on. I just have this hunch that Trump might actually tweet a fair bit during this. Who knows? The other thing, I don't know if this is on your list of five, but it'd be great if it was. Is the idea that lying to Congress is a prosecutable crime? I mean, sure, yeah, great. But I think you're gonna end up with a fairly lengthy list of. Of people to prosecute, if that is the standard. Now, of course, this administration is going to prosecute people that wants to prosecute, but if that is the standard, it would. It would, you know, not entrap. It would catch a lot of people in the net here.

C (11:12)

It's extremely difficult to prosecute lies to Congress because a lot of things are subjective. A lot of things, you know, people misspeak or they don't remember something exactly, or they trip over their words. And so to actually secure a conviction has to be so clear and compelling, and the person has to have known what they were saying was false, intended to deceive and know, and then it had to actually have some effect of convincing people something that wasn't true. So there's several elements of it that are hard to get, and I think that is going to be a challenge here.

B (11:42)

All right, so let me just issue a quick correction because it just occurred to me that even if they did bring in the reporter who received the tip, the source was, no one's disputing the source was McCabe, at least in this case. The question is whether he was authorized.

C (11:54)

By this point is known. Yeah.

B (11:56)

Yeah. Okay. Where do we go from here? Obviously, Comey is going to turn himself in and believe it's going to happen tomorrow. You reported that Patrick Fitzgerald, a blast from the past, is going to be his lawyer. The judge, as you reported reported, is a Biden appointee who's been involved in some recent Trump cases. What is like the, what are we looking at in terms of like, next steps in time frame?

C (12:19)

So to me, everything is about the pre trial. So he'll, he's going to be arraigned on October 9, I believe is the date. So that's, I don't know what'll happen before then. There may be some maneuverings before then, but, but that'll be sort of the day everyone goes to court and he gets to say not guilty. And, and you know, it'll be a big moment. But, but you know, I think everything's going to be about motion to dismiss discovery. You know, what, what evidence are they relying on here? You know, prosecutorial, I mean, I suspect expect Fitzgerald. But really, anybody who is trying this case for Comey is going to have a long list of motions ready to go.

B (12:54)

Try to get rid of the case before it starts.

C (12:56)

Yeah. And I think, I think more than most cases, they will have a legitimate shot at succeeding on some of, some of those elements, even if they don't throw it out entirely. Ways to, you know, get at some of these issues we just talked about in the pre trial.

B (13:11)

This is not a legal analysis and you don't have to weigh in on this, but there is a Shakespearean, you know, element to this, which is Anyone who remembers 2016 knows very well that James Comey is the singular person responsible for Trump winning. He went out of his way to convey fairness and to make sure that the public knew that an investigation into Hillary Clinton was ongoing and had been reopened with the discovery of Anthony Weiner's laptop. And for, you know, obviously, Trump held a grudge over the Russia investigation and, you know, continued to hold that grudge well into his second term in office. And here we are now in this incredibly unprecedented moment where the sitting president directed The Attorney General, to bring a prosecution, then fire the attorney, the U.S. attorney, in order to get it done. My last question for you is, you know, you talk to people in and run the Justice Department. Everyone who I know and who I read, who covers the Justice Department, says this is basically the end of it as we know it. That it's, it's no longer. That sort of post Watergate idealism that it had embodied is gone and will take a generation, if it ever comes back, to come back.

C (14:17)

I think that's a, that's a prevailing sentiment. It's been trending that way for a while. And this is sort of ripping the band aid off in a way. You know, I've heard from people in that orbit who are just, you know, shocked and dismayed. They didn't think. I think, like you said, it's different when it really happens. I think people are wary of this. And now they see the paper, you see the indictment, you say, I can't believe this happened. And that that's sort of, you know, where it's just becoming real for people, you know. Comey's son in law resigned minutes after the indictment. He was a veteran prosecutor in the.

B (14:48)

Eastern district of Virginia.

C (14:49)

Yeah, in that district. And he handled a bunch of January six cases, the Oath Keepers case that went to seditious. So he's pretty established and quit right away and over this exact issue. Now he's a Comey relative, so people will, you know, shrug that off, but I think a lot of prosecutors are feeling that same. Sentimen.

B (15:07)

All right, man, you gotta get back to work. I'm sure of it. Kyle Cheney of Politico, always great to have you on these nights. Great to be crazy and it's crazy that we have these nights, but this is like the third or fourth time.

C (15:17)

Maybe not the first of men not the first and maybe definitely not the.

B (15:21)

Person, definitely not the last. All right, buddy. Take care, man.

A (15:28)

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