A (3:28)

Hello.

C (3:28)

And by lawfare Editor in Chief Benjamin Wittes, who also writes about the law and who happens to know Jim Comey personally. Hi, Ben.

B (3:35)

Hey, good to talk to you again.

C (3:38)

Ben, as you know, the Justice Department is part of the executive branch. It's the president's job to use it to enforce the law and carry out their own priorities. So why is the Comey indictment such a big deal?

B (3:52)

Well, I think there are three different reasons. The first is that it flows entirely, as best as I or anybody else can tell, from the personal hatreds of Donald Trump and whatever the proper relationship is between the president and the Justice Department. In a properly functioning executive branch, the pursuit of the president's hatreds is not a traditional part of that and is a toxic thing. The second reason is that it's clearly political. And I don't mean political here in the sense just of they come from different political movements or whatever. This is a use of the Justice Department and the criminal process to punish a political enemy. And so if you think of the other people that Trump is threatening to go after, they are Adam Schiff, Letitia James, right? They are people who have run afoul of the president in political contexts. And normally, at least in the modern history of the Justice Department, we have tried to insulate the Justice Department from that kind of use as a political weapon. And then the third, third reason, which is infused throughout the first two, is that there is almost no reason to think that the allegations in the indictment are true. So one of the three counts was struck by a grand jury. There has been reported that there is a prosecution memo that recommends against doing this because it's not clear that there's probable cause that the crime is real and the predecessor of the current prosecutor refused to bring the case and was willing to lose his job over it. So you have a case that is of extremely dubious merit being pursued for a political reason against somebody that the president just personally hates. And that's a big watershed moment. And by the way, you don't have to take my word for this. This is kind of the way Trump talks about it, right? He's quoted in some of these stories saying he doesn't care if the case doesn't have merit. And that is not something that we are used to in the relationship between the president and the Justice Department.

C (6:39)

Quinta, let's get into this a little bit. What did you make of the specific charges? Because what Ben said is true. The administration did have quite a hard time even securing the indictment. Can you explain what happened? And then what you think it means?

A (6:54)

Well, it's a little hard to know what to make of the specific charges because we still actually don't have a lot of information about the basis of those charges. So, as Ben said, the U.S. attorney for the Eastern District of Virginia resigned rather than be fired by Trump for his refusal to move forward with this case. Trump then appointed in a maneuver that I think is not obviously legal, Lindsey Halligan, who is a Florida insurance lawyer who was previously involved in sort of ideological policing of the Smithsonian. And Halligan walked in there and seemingly convinced 14 jurors on the grand jury to vote for two counts on an indictment. There are originally three. So she has a two out of three rate. And it's not totally clear what those counts are about. So they both focus on alleged lie told by Comey in front of Congress during congressional testimony in September 2020, but there's no specifics about what the lie was. There are multiple possible candidates, but precisely because the indictment is so bare bones, it is really very difficult to say more until we get more out of the Justice Department.

C (8:20)

There's an interesting tension in what you both have just said because Ben called it a watershed moment. Like, we have not seen the Justice Department behave quite this way going after the President's enemies. On the other hand, what you both are describing is not a kangaroo court. You know, the way we've seen in some other countries, it seems like it was quite difficult and they really had to thread the needle to even get this indictment. So what do those two things suggest to you?

B (8:49)

Well, a kangaroo court, it is certainly not. The Eastern District of Virginia has, you know, a lot of good judges. It clearly has grand jurors who were discriminating between charges. But there is a quality of a kangaroo executive branch here. And, you know, this is a situation in which the U.S. attorney, in an extremely high profile case against a political foe of the President, this US Attorney was willing to, as Quinta points out, do this with no criminal background and on, like, her third day in the job.

A (9:35)

And so it's very inspiring. You know, you can do whatever you put your mind to.

B (9:39)

Exactly. And so this woman, Lindsey Halligan, was willing to bring this case despite being warned about the deficiencies of it, despite her predecessor having refused to bring it, despite it having been investigated and rejected by the last Trump administration, and despite the fact that it would give rise, predictably, to probably the most dramatically merited motion for dismissal as a vindictive prosecution in American history. And she was willing to go forward with it in a fashion that is simply at odds with the way we expect federal prosecutors to behave.

C (10:25)

Right. Though with a well established court system as a check on the other side, like, at least we have that.

A (10:32)

I think that that's really important. And we have seen how that has played out in cases that are related to Trump's desire to use the Justice Department as a political tool, though not this intimately connected with his particular grievances. So what I'm thinking of is, for example, the slate of prosecutions brought by Federal prosecutors in D.C. during the increased federal law enforcement presence here. I've been tracking these. There have been a number of prosecutions brought for a charge that's essentially assaulting a federal agent. A lot of these are somebody was arrested in something that normally would have been a regular police stop because of the surge. It was a federal agent who cuffed them, and there was a scuffle or something like that. Overwhelmingly, the Justice Department has either dismissed these cases, outright, downgraded them to misdemeanors, which don't require a grand jury indictment because a grand jury refused to indict, sometimes multiple times, or moved them into D.C. superior Court, the local court here. All those are examples of pushback from grand juries, which is extraordinarily rare. I mean, and we're kind of saying, well, the government got two out of three counts in the comey and indictment. That's concerning. But it is also really striking that the grand jury rejected one out of three. I mean, these are non adversarial proceedings. Famously, people say a grand jury wouldn't die to ham sandwich. So I think it's striking how DOJ has been striking out here. And so I think that that is a very real reminder here that though prosecutors hold an extraordinary amount of power in our system, especially in a system where people are increasingly not going to trial but taking plea deals. When a grand jury decides that it wants to take its role seriously, when a jury decides to take its role seriously, those can be very real checks. And so to the extent that Trump actually wants a conviction here, I think he may have said mission accomplished a bit too early.

B (12:46)

Yeah. I would just add about the grand jury. Our system has these checks that have kind of faded into the color of the wallpaper. The grand jury is one of them. You know, another one is the Eighth Amendment, which protects you against being, you know, drawn and quartered. Right. And in a world in which nobody wants to draw and quarter you, that seems like it's not really a protection, because it's protecting you against something that nobody thinks to do anymore. But then along comes a prosecutor who actually wants to draw and quarter people, right? And all of a sudden, the. That's constitutionally off the table becomes significant again. And you're seeing something like that happen with the grand jury. We've all grown up dismissing the grand jury. It'll do anything a prosecutor asks, and that's because we have prosecutors who will not ask it for indictments in cases that there is no probable cause. And we have layers and layers of Justice Department policy and ethics rules that mean you're never going to ask a grand jury to do something that it would not do. And so the protection that it affords becomes completely invisible until you have a prosecutor who's willing to violate those rules and say, hey, you know, let's indict somebody for a felony, for throwing a sandwich. And the grand jury says, are you kidding me? Right? And we're seeing those civil liberties protections which have kind of faded away. They've not faded away because they don't exist anymore. They've faded away because we went through this period where we were, you know, civilized enough not to ask it to do things, certain things that it protects against. And now we've decided we are not. And so all of a sudden, the institution has a certain life again.

C (14:50)

Quinta, five years ago, you and Ben wrote an article titled how to Corrupt the Justice Department about how Trump was leaving a playbook for his successor. Turned out his successor was him. The first rule you listed was find the right attorney general. Is Pam Bondi the right Attorney General?

A (15:09)

She is the right attorney general in the sense that she seems totally unwilling to say no. I think that Bondi is really an interesting case, because if you look back at Trump's various attorneys general, in the first term, you had Jeff Sessions, who I think most people have forgotten, but I think may actually have been the best. Trump appointed attorney general who said no to a lot of the things that Trump demanded. He recused himself from the Russia investigation. He repeatedly refused to begin meritless investigations of Hillary Clinton. Then we had Bill Barr, who I think took a, let's say, a proactive approach in trying to use the Justice Department in ways that would advantage Trump. And there has been a lot written, particularly by Jeffrey Berman, who is the U.S. attorney for the Southern District of New York, about how Barr pressured him in ways that Berman felt were inappropriate to pursue Trump's enemies. That all seems very quaint now.

C (16:11)

I know even Barr had a line. I was recently rereading the history about Sessions and Barr and thinking, wow, if only I'd known at the time. Even Barr had a point at which he said no.

A (16:22)

Right. Which is after the 2020 election, refused to move forward with efforts to overturn it. So I think Trump has learned from that, and really, the whole effort of the Project 2025 and the efforts of the people in sort of the greater Trump orbit to prepare for a second term were focused around finding people who would not tell him no. Bondi is very much of that mold. What I think is interesting, however, is that even though Bondi has been, you know, a strong soldier for Trump, has not broken from him in any way, there has actually been reporting that she was not enthusiastic about the Comey prosecution. This was something that she was not gunning for. She felt that it was a bad idea. Along with Deputy Attorney General Todd Blanche. She didn't say anything publicly, of course, but I do think that even those sort of closed door doubts are telling because Bondi may be many things, but she is also a lawyer. She was the Attorney General of Florida. And I think that there is an awareness, even on the part of the sort of the real apparatchiks in the Department of Justice among those who actually know how to trial a criminal case, that this is just a loser.

C (17:41)

You know, the Justice Department is a pretty earnest bunch, I imagine. Like, how many Lindsey Halligans are there, sort of. How easy is it to corrupt this culture?

A (17:53)

Well, I'm curious for Ben's thoughts as well, but as of January 20, 2025, as you say, it was a organization that is full of people who really believe in what they're doing, take their professional and ethical responsibilities extremely seriously, and had a very strong code against bringing this kind of meritless prosecution, in part because as prosecutors, they know that it's really hard to get this past a grand jury, much less a petty jury. And there are not many Lindsey Halligans. I think that what you see is that Trump's desire for sort of meritless prosecutions of his enemies is creating this dynamic where people who have any kind of professional experience are kind of at odds with the people who will give Trump what he wants. And that second bunch are people who don't have professional experience at all, which then makes it harder for them to give Trump what he wants.

C (18:58)

Right. So it's like incompetence, like we saw with Lindsey Halligan.

A (19:01)

Exactly. Although, you know, there you can do a lot of damage with incompetence. I think the big question for me is how that professional ethos at the Justice Department is holding up it's been under an extraordinary amount of pressure. There has been a really generational exodus of talent from the department, whether people getting fired because they worked on the January 6th investigation, people leaving for other jobs, people leaving because, like Eric siebert, the former U.S. attorney for the Eastern District of Virginia, they were apparently on board with the president's agenda, but simply didn't want to bring a meritless prosecution. And so I think the court question is, as those people leave, will they be replaced by more Lindsey Halligans, and what effect will that have, both on Trump's ability to force the Justice Department to pursue these kinds of cases, but also on the department's ability to actually litigate them successfully?

B (20:01)

One measure of how many Lindsey Halligans there are is how much support she has gotten for this project from the office, which is to say, as best as I can tell, virtually none. She appeared at the presentation by herself. Nobody else in the department signed this indictment. And so I do think it's premature to declare the death of the entire Justice Department culture, but it's certainly under stress.

C (20:32)

After the break, what could Trump's next moves be and what might stop him? Let's imagine a scenario where the Justice Department and under at the FBI does tip more under the control of a corrupt president who's using it freely against a list of enemies. Quinta, what are the kinds of things that you could expect to see in that scenario?

A (21:07)

I would expect more investigations and prosecutions like the Comey case. Trump has a long and seemingly ever lengthening list of enemies. And even if the department is never able to turn these into prosecutions, even an investigation can be extremely damaging. Comey is kind of a bad defendant for the department to pick, in the sense that he's actually very well positioned to fight. This is somebody who knows the Justice Department and the FBI very intimately.

C (21:46)

Has money.

A (21:47)

Yes, has a lot of money that he can throw at this problem. He is at the end of his career, so he doesn't have to worry about getting a job. And he also just knows a lot of lawyers. His lead defense lawyer, Pat Fitzgerald, is a longtime DOJ hand ran the Scooter Libby investigation. And then also Comey is somebody who has a lot to gain from standing up in the sense that he is always someone who has sort of presented himself as this kind of, you know, Boy Scout figure. I think that fighting fits into that character. So to the extent that there are other Trump enemies who fit in that category, I think that this is menacing. But, you know, those folks will, in the End be fine. What I would be more worried about is if the department starts going after people who are less well positioned, either because they're not as prominent. And so it's hard to rally people behind them. They don't have the money. And so the legal bills might really add up, especially now that Trump has gone after law firms and made firms more hesitant to offer pro bono representation, people who need jobs. You know, if you're able to make someone sort of politically radioactive, you can really mess up somebody's life that way. And that's not a concern for Comey, but it is for a lot of other people. And so even if none of these prosecutions are successful, the Justice Department can still be very effective in sort of preventing people from being as politically active as they might want to be.

C (23:32)

I want to get into that because on the one hand, there's Trump's list of enemies, which you've all talked about. Then there's this other strain of going after civil society, which right now is mostly at the level of rhetoric, like White House adviser Stephen Miller calling the Democratic Party a domestic extremist organization or saying that California Governor Gavin Newsom criticism of ICE agents incites violence and terrorism. Ben, how can you imagine a president using politicized law enforcement to start actually carrying some of this out, going from rhetoric to action against some of these organizations?

B (24:10)

Right. I don't have to imagine it, because there is a White House memo distributed the other day to all of the law enforcement and national security components answering that question. And there were actually one executive order which designates ANTIFA as a domestic terrorist organization. And the other is a memo describing what the president wants to happen, which is think of it as an instruction or set of directions to the law enforcement components and the national security components to go after antifa, like organizations that are doing anything bad, sort of in a lefty way that may be contributing to political violence and specifically to go after their funders.

C (25:06)

But that's still like an executive order is just an executive order, and rhetoric is just rhetoric. So I actually don't have the imagination to understand what that translates into in terms of prosecutions or what go after actually looks like.

B (25:22)

Right. So let's actually look at the document itself, because it sort of answers that question. It provides a list of things that the president wants to happen. I want to focus on one in particular, item K in the list which says, all federal law enforcement agencies with investigative authority shall question and interrogate within all lawful authorities individuals engaged in political violence or lawlessness regarding the entity or individual organizing such actions and any related financial sponsorship of those actions prior to adjudication or initiation of plea agreement. So in other words, if you're caught attacking a federal officer, and remember how broadly they understand that that means including throwing a ham sandwich or throwing your arms up when an ICE agent attacks you before they can have a plea agreement with you, they want to know what organizations you're affiliated with and who's funding them. So I think you know what this document does. It doesn't give the government any authority it doesn't already have. An executive memo can't do that, but it says direct your efforts and be really aggressive with those efforts. Direct your efforts against left political violence as opposed to the most dangerous political violence in your jurisdiction, which may not be left, depending on where you are, right, and direct it at antifa related political violence and look for people's money. And that is a way to make a whole bunch of foundations and foundation execs skittish about spending money on things that may later, you know, you may think you're doing a project on, you know, de incarceration of people with non violent offenses, right? And some of those people are going to go on to reoffend. Are you going to then be the subject of investigations if somebody you helped release, you know, turns out to participate in a protest that goes awry? And I think the purpose of these memos is to make sure you worry about that.

A (27:58)

One additional point, I think to Ben's point, that, you know, a lot of these, the people who might be swept up in this are just, you know, people who protest and are scraped up by an ICE agent or something like that, that this is extraordinarily menacing. But in some ways I think the premise is wrong. And what I mean by that is that Trump and Elon Musk seem very convinced that the political opposition they're facing in the streets is funded by the Soros foundation or other funders. And so if you arrest the guy throwing the sandwich, you will find George Soros behind him. There is basically no evidence to suggest that. And so to the extent that they are trying to work up from the bottom, I do wonder whether they will hit a dead end. That doesn't mean that they will not be able to frighten foundations into sort of silence from the top down though, right?

C (28:58)

This is the classic is this incompetence or malevolence problem. I mean, one thing I need from you guys is another example just so I understand how they could use. When you describe the sort of, if you look into the ham sandwich, you'll find the Soros Foundation. Then I think this is all empty rhetoric because you won't find the Soros foundation behind the ham sandwich. But what are some realistic ways that they could thread this needle and go after someone?

B (29:26)

Well, so first of all, go after somebody has lots of meanings. Are they going to find criminality in the Soros Foundation? I very much doubt it. Are they going to paralyze the Soros foundation, which is actually called the Open Society Foundation? Are they going to paralyze it with responding to investigations and chill a lot of other foundations? Yes. Now you're right that if that's all they can do, that's actually the system working. It's the system restraining a malevolent prosecutorial force with things like evidence. But now let's go back to the Comey indictment, which is, you know, you can get to the point where if you are dishonest enough before a grand jury, you can actually indict somebody. And you know, the more complicated an evidentiary base gets, that's the easier that is to do. And so I think once you allow the manipulations of a grand jury process that rely to some degree on prosecutorial good faith, once you get rid of that expectation, well, you know, you can do all kinds of things. There's a large collection of people who, you know, may be entirely innocent of the thing that you're investigating for, but did something right. And if you create an environment in which which I can simply point at you or Quinta or someone else and say, investigate them, find out what they did, rather than starting with a crime. You know, most people have done something wrong at some point and you end up with successful cases that are basically, you know, we randomly spot checked your computer and you have some dirty images on it.

C (31:24)

Right, right. Okay, here is the big grand historical thing that I do not understand. I've been reading the Clay Risen book, Red Scare, and this is not our first rodeo. This is not the first time that an American president has excessively politicized the Justice Department. There's J. Edgar Hoover's use of the FBI, the Red Scare, McCarthy era, Nixon and his enemies live. And then there were a series of post Watergate reforms that were supposed to curb this kind of corrupt executive power. So why are we back here again?

A (32:00)

The thing about most of those post Watergate reforms is that they were codified on the level of intra departmental rules for conduct, you know, guidelines, norms. They in many cases were not written into law. In many cases they couldn't be written into law because they would have infringed on presidential power in a way that post Watergate, there were questions about whether or not that would have been constitutional. Now, I think would pretty unambiguously become unconstitutional under the reading of executive power that the Supreme Court seems to have settled on. And so what we have discovered is that it is actually pretty easy for a determined president to undercut a lot of those norms if he is aided by a party in Congress that is more interested in partisan politics than in upholding its own institutional prerogatives. So what I would say is that in thinking, what do we need to do? Or what could we need to do if we were to get past the other side of this and have some kind of government that were interested in really reforming things, that you need to think seriously about what the presidency looks like and whether you need to reconceptualize the presidency to allow for stricter laws to limit the President's ability to direct the Justice Department like this. I mean, after Watergate, there was a proposal on the table to make it harder for the President to remove the Attorney General and make the Department of Justice a lot more independent. That didn't go anywhere for pretty constitutionally obvious reasons. But I have been thinking about that as an example of sort of the kind of thinking that you might need to engage in to see a way out of this.

B (34:07)

And just to be clear, the answer to your question, Hannah, whether the structure was changed at all is no. You know, the Attorney General is still a creature of the administration, appointed by the President, subject to advice and consent of the Senate, and removable at will by the President. And the. The idea that the Attorney General should be independent for investigative purposes is entirely a normative idea. And then Donald Trump called bullshit on it and laughed at the idea that anyone would believe in it. And the world did not quake with rage in response. And once you do that to a norm, you really do destroy the working premises of the institutions.

C (35:09)

So the Red Scare book has a happy ending. As we know, the civil liberties lawyers brought some critical cases. Journalists played a key role. And then in November 1954, the party lost the midterm elections and kind of broke McCarthy's spell over the nation. Do you see similar counter forces working effectively today?

A (35:32)

I will give a qualified yes.

C (35:34)

Oh, good.

A (35:35)

I will say I have also been reading that book and doing some research and reporting the through lines from today to that Red Scare into what's often called the first Red Scare, which took place around us Entry into World War. One of all of the experts and historians who I've talked to, what a lot of them have said is in many ways the repression that is happening right now is worse than what happened then. But what is different is that there is a civil society that is rejecting it. It, even during McCarthyism, you did not see this level of sustained pushback. And so I don't want to be overly optimistic here, but I do think it is noteworthy that even as we're talking about civil society being in great danger right now, we actually have a much stronger civil society and a much greater culture of free expression and political dissent than we have during the 1920s or during the 1950s. And I think that is worth keeping in mind, not only because I think it is a source of hope, but also because it means that there's something to fight for.

B (36:52)

I will just add to that that the McCarthy era finally ended in part because of a combination of journalism and congressional action. And it is very hard for me to imagine this era ending without a substantial change in the composition of at least House of Congress. The great source of power that is untapped to do something about what is happening now lies in the appropriations power and the oversight powers of Congress. And if Congress is not going to pick that sword up, all other efforts are going to fail.

C (37:32)

Right. So you're watching the Comey case, other legal actions, but also the midterm election.

B (37:37)

That's right. I think it's a different ball game if Congress has the ability and the fortitude to say things like, that's a nice White House helicopter you have there. It would be a real shame if you didn't have the money to use it. You know, Justice Scalia used to say that Congress actually has all the power in our system if it merely can get its act together to use act.

C (38:06)

Well, Ben Quinta, thank you both so much for joining us today.

A (38:10)

Thank you.

B (38:11)

Of course, it's a pleasure.

C (38:17)

This episode of Radio Atlantic was produced by Rosie Hughes. It was edited by Kevin Townsend and fact checked by Von Kim. Rob Smirciak engineered this episode and provided original music. Claudina Baid is the exact producer of Atlantic Audio and Andrea Valdez is our managing editor. Listeners, if you like what you hear on Radio Atlantic, you can support our work and the work of all Atlantic journalists when you subscribe to the Atlantic. At theatlantic.com listener I'm Hanna Rosen. Thanks for listening.