← The Lawfare Podcast
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- [00:03]
A
Did you see the game last night?
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A hack for game day, but it might be the ultimate play this football season.
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C
It'S the Lawfare podcast. I am LawFair senior editor Kate Kwanick with Lawfare Editor in Chief Benjamin Wittes, Senior Editor Anna Bauer and Professor of practice in New York University, and Lawfare Editor Bob Bower. Today we're bringing you audio from our newly launched show, Lawfare Live the day after on Substack. You can join us in the next one by subscribing to our substack@lawfare.substack.com in today's show, which was recorded Monday, September 29th, we discussed the basics of the James comey indictment on September 25th and what more we'd learned over the intervening days from the appointment of Trump's former personal attorney Lindsey Halligan to oversee the matter, to what facts underlie the indictment and their relative merit and what and when we can expect from the this case over the next few weeks. Again, if you like it, please join us for the next one by subscribing to our substack@lawfare substack.com Anna, do you want to kind of just walk us in through like assuming that everyone has like a pretty functional definition of everything that occurred at the end of last week? What happened over the weekend? How did the story shift in the media? How what have been like kind of the takes that have been coming out of this? What should we know kind of about how this is getting framed going forward?
- [02:25]
D
Yeah. So just to briefly recap, James Comey was indicted on Thursday of last week. And that indictment followed a series of events in which the Eastern District of Virginia U.S. attorney Eric Siebert resigned reportedly in part because he refused to seek an indictment against James Comey and some of these other political, politically motivated prosecutions involving Adam Schiff to Shames. There were public statements by the President that urged these indictments. The President then replaced Siebert with Lindsey Halligan, his former personal criminal defense attorney, who then went before a grand jury and obtained two counts or a two count indictment against Comey related to false statements and obstructions. All of that relates to this September 30, 2020 congressional testimony. And, you know, when the indictment came out, Kate, it was really unclear exactly, you know, what the alleged false statements were about in terms of the underlying factual basis. We did know that, at least on one count, Comey was alleged to have have represented in that 2020, that he had never authorized someone at the FBI to serve as an anonymous source in news reports and that the indictment alleges was a false statement. It was a little bit confusing because the actual quoted language in the indictment is not something that Comey specifically said in that 2020 testimony. It was from earlier 2017 testimony during exchange with Grassley. You know, he said he had never authorized anonymous leaks at the FBI. And then it came up again in the 2020 testimony during this exchange with Senator Ted Cruz in which he said he stood by that earlier testimony. But contextually, it was all a little bit confusing because there was also another reference to an incident with Andy McCabe. So everyone was a little bit confused about, like, what are actually not just a little bit, a lot confused about the underlying factual basis of this indictment. And at first, people thought because of that context of the exchange with Senator Cruz, that all of this had to do with the Andy McCabe matter. That was an earlier investigation into whether Andy. Whether there was an unauthorized disclosure of information related to a 2016 Wall Street Journal article. There was a whole inspector general report on this. It found that Andy McCabe inappropriately authorized the disclosure of information related to that article about the Clinton Foundation. And, and that inspector general report never actually found that Comey himself had authorized the information, because at the time, McCabe, as the deputy director of the FBI, was allowed to make those types of authorizations. And McCabe has never said, you know, that Comey had anything to do with authorizing things beforehand. The only inconsistency in their stories was what happened after the article published. There was this question around, did McCabe actually tell Comey about the disclosure? So everyone, everyone thought maybe it had to do with that, but it seemed really, you know, if that was the thing that this indictment was based on it. It seemed to be like that. You know, it's completely baseless based on what the public evidence is and the inspector general report. So the other option that people thought was this matter that dealt with Dan Richmond, who was a friend of Comey's, who served as a special government employee for some time at the FBI and sometimes occasionally served as a kind of informal media liaison for Comey in the media. He would had relationships with reporters. Again, there was an earlier investigation, and in the documents related to that investigation, which was called Arctic Haze, there are statements that Richmond makes in which he says things like, comey never asked me to talk to the media. So we had these two competing potential factual bases for the indictment. And though at first everyone thought it was maybe the McCabe thing, over the weekend, it became relatively clear, I think, that the overwhelming consensus has shifted to the Richmond matter. There's been multiple reports from various outlets in which they have sources at DOJ or at the FBI who are saying that the indictment relates to the Richmond matter, not to the McCabe matter. Andy McCabe also told CNN and then also on his own podcast with Alison Gill, that he has not been contacted or re interviewed about this matter, which makes it less likely. Right. And then we also know that Dan Richmond has, because there's reporting that he interviewed. So it seems that it's about the Richmond thing. I'm sorry, that was a long wind up to getting to that. But it. Unfortunately, with this indictment, everything gets, as Ben put it, everything gets real stupid and real complicated real fast when you start talking about the kind of history of it and the events that preceded it. But that's the main thing. The other thing, too, I'll mention briefly, Kate, is that we got a transcript of the.
- [08:58]
C
Oh, God, that was such a mess. And we, like, looked at it over the weekend. I feel really bad for. I mean, I shouldn't feel bad, but like, I'm also just kind of like, oh, my God, what a farce, right?
- [09:09]
D
So we got a transcript of the event. Like, grand jury proceedings, as everyone knows, are secret. But what's not secret is indictments are presented in open court, and the grand jury, for a person will go into court, hand up the indictment. It's kind of, you know, sometimes. Sometimes it's under seal, so you don't know which indictment it is because they're just using initials. But in this case, they announced the indictment of James Comey in open court, and Lindsey Halligan was there representing the prosecution. Of course, this is the first ever Time she's been involved in a federal prosecution or any prosecution, and it's really like her in court experience is extremely limited. She was on the president's legal team as one of his criminal defense attorneys. But I covered those cases in depth for two years, and I got to say, I think I only ever saw her actually in court, like, maybe two times. And she never had a speaking role in terms of actually arguing on behalf of Trump. But it made it very clear in this transcript that she seems to be a little bit, or actually a lot out of her depth. There was a lot of confusion about the paperwork.
- [10:33]
C
Two documents that her actual signature had conflicting, like, counts on them and that she had signed, but then in court said she'd only signed one of them. They're like, well, you've obviously signed two of them. So, like, this can't be. I mean, it was just very embarrassing for her. I like. Yeah, I mean, that seems. That seems also not. Yeah, so.
- [10:53]
D
So I think it's just a preview of, like, if she is the one who's going to be the lead prosecutor this case, especially now. Again, this is the last bit of information I will get to so we can move on. But the, the thing that we. Another thing we learned over the weekend is that Comey has hired Pat Fitzgerald as one of his defense attorneys. A very well respected, very experienced criminal defense attorney and former longtime prosecutor. He was the US Attorney in Chicago for a long time. It seems just like a. Such a mismatch of experience and skill in terms of who Comey has in terms of his legal team. And then, you know, the potential that it could be Lindsey, Lindsey Halligan herself, who is trying this case, who has no experience whatsoever and just seems completely out of her depth.
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C
Yeah, I think that that's. I think that that is. That is the thin, thin, thinness of this case, factually, the thinness of the bench that they're pulling from to prosecute it and everything else just seemed to be the theme coming out of this weekend, which, speaking of now, Bob and Ben, I'm going to kind of pivot to you guys. I'm really curious, like, what happens if this just utterly fails? Like what, like, we've got this IND we, like, what are the next steps? What is the timeline of this going forward if these, like, you know, we barely have a true bill here. Like, what is going to happen to. To this in, like, in the actual next couple of days and weeks? And how quickly can it go away? And what, I mean, how will the president kind of deal with that, Bob, you talked about this a little bit on executive functions today. Your substack with also Lawfare editor Jack Goldsmith.
- [12:54]
B
Thank you very much. And I certainly enjoy being invited to this conversation. There are two views, I don't think they're incompatible of how Donald Trump will deal with the weaknesses in and when I say weakness, I'm being charitable in this indictment and his role in it. The first is that he doesn't care, particularly one way or the other that he's indicted Jim Comey. He satisfied his base that he's going to take his ounce of blood here in revenge for for all the damage that he believes Jim Comey and others associated with him have done to him. And so now whatever happens, happens. He could care less. And that may in fact be what he understands to be the case because there were professional prosecutors, including his own attorney general and his deputy attorney general, who warned him, apparently, according to press reports, that this was perhaps not the strongest case to bring. And he was reported to have said he didn't care. So that's one view. Now, on the other hand, this case needs to crash and burn, first of all because it's the right result and secondly, because I think that it will potentially slow the desire he has expressed even in the days following that he wants to expand on this attack and bring other targets within his retributive sites within his program. And he's someone who notably doesn't care to lose very much. So let's assume he loses quickly. I certainly hope he loses very quickly. And the basic point has been established. He blames the judge, no doubt, for being a radical left lunatic appointed by Biden or whoever he decides to put the blame on. But then he has to step back and ask himself, how many more times is he going to risk this outcome? And there are going to be people in his administration, a few who I think hang on to some sense of reality, who will tell him, you cannot continue to bring cases that you're going to lose in this extremely embarrassing fashion, bringing your personal lawyer in who has no criminal prosecutual experience, giving a direction to the attorney General of the United States, that I think was, excuse me, I think was intended in the first instance as a direct message, but wound up on truth Social. I'm hoping that is the case. I'm hoping this turns out to be a famous case because it will be a lesson, not that it should be allowed to function on its own only is a lesson, but a lesson in the limits on executive gross manipulation for political purposes of the Department of Justice.
- [15:35]
A
Yeah, I agree with that entirely. I think how it crashes and burns matters a lot for that purpose. So let's consider three possibilities. One is that, you know, a judge were to rule that Alina Haba was not properly appointed U.S. attorney and therefore not Alina Habba Halligan, like Alina Habba in New Jersey, and therefore throws out the indictment. And by the way, you only have till tomorrow to bring it again. And so it fails spectacularly, but for no reason relative to the merits of the indictment. It merely fails because the prosecutor unlawfully appointed and has no idea what she's doing and there isn't time to do it again. I think that would be. It may be a perfectly likely result because it's. Because I think there probably are legal deficiencies with her appointment. But it doesn't give the kind of vindication to Comey or the rebuke to. It doesn't send the message that Bob is talking about. Right. Possibility is that which may be the likeliest is that it gets dismissed on the basis of vindictive prosecution, which is a very high standard to meet. And this is one of those cases, those rare cases where the unambiguous public record supports it. And every time the president tweets, it supports it more and more. And so that, again, depending on how the judge writes the opinion, would be an amazing rebuke to the administration for behaving this way. But it didn't. Might not say, and by the way, this is, the defendant is innocent of these charges, at least as you've stated them. Like, it really depends how you write that opinion. Right. Normally you don't get to that question until. Until a trial. Third possibility is that it, you know, for some reason, it goes to trial. And then I really would expect the fact that the evidence just radically does not support the charge, as well as the fact that Pat Fitzgerald and David Kelly are, you know, exceptional trial lawyers of the highest caliber. And let's just say Lindsey Halligan is not, you know. You know, nowhere does that become more visible. That stuff is visible in brief writing, but it's really visible when you have to go in court appearances. Right?
- [18:35]
C
Oh, like, I mean, like, it actually was like, you. Like, this is worse than, like, the sign in for my Internet law class, like, from, like, I pass around a sheet and people have more ideas of, like, what they've done and what they haven't done then, like, this, this. This current Attorney General. I mean, I think that that's right. Ben, I want you to back up and talk really Quickly about the three kind of prongs that you've kind of pulled out of who you think that this case is relevant for us. So like, it's obviously relevant for kind of like the bigger. But you had Letitia James and some other people that were kind of like talking about this. And I kind of wanted to get into that and then kind of bring Anna and Bob back in about what their takes on that are. Is Right.
- [19:15]
A
So I guess there's a. There's a few things going on here. One is vengeance against Jim Comey. And let's never forget how radically unacceptable that is as a motive for a president to appoint a prosecutor, a prosecutor to do something. You know, one thing this isn't about is, you know, a crime was committed and the public needs an accounting for that crime. Right. This was really a classic example of the Robert Jackson, famous Robert Jackson speech, 1940, on the role of the federal prosecutor, famously used by Antonin Scalia in the Morrison v. Olson dissent. This is the case of you identify a man and you say, now go get him. Figure out the crime. And by the way, you have 72 hours to do it because the statute of limitations is running out. Whatever the crime may be, it must be a false statement in a particular hearing. Go find him. So the first thing to understand is just the magnitude of the abuse of federal authority. That is that, that's. This is a kind of. If you think about it as a fantasy of misconduct had by Robert Jackson and Nino Scalia used mostly as a hypothetical. Right. This is the hypothetical made flesh in the person of Alina Habba and the indictment of Jim Comey. And when Jim said in his video that the night of the thing that he is heartbroken for the Department of Justice, I think that's what this is a reference to. I don't think that was a, you know, this is an institution that he served in for many years in many different capacities. And there's something very dramatic about the degree of misconduct here. And you know, that one's institution would behave this way toward anyone, but let alone to you is got to be a dramatic thing. The second thing, but let's be candid about Jim for a minute. Jim is a wealthy man. He was general counsel of the world's largest hedge fund. He was general counsel of Lockheed Martin. And his social circle is composed. His close friend group is composed of people with whom he was ausas in the Southern District of New York, including both David Kelly and Pat Fitzgerald. These are, these are the people he's close to. In life. And so you know, when you are A, innocent, B, wealthy and C, surrounded by first rate lawyers, the risk to you is at least somewhat hypothetical. Now Letitia James is an example of category two. I have a second category. I don't think she is independently wealthy. She is, as best as I can tell from looking at the papers, she is not guilty of mortgage fraud. Full stop, end of story. There may be something I don't know, but. So when you target somebody who is in office, which Jim is not, and by the way, you show up in a trench coat at her house, which happened, this is not a joke and you demand that she resign from office, you know there's an extortion component to that. I'm going to prosecute you. If you stay in office, you have a certain vulnerability that Jim doesn't have. You also have a. I mean she is probably surrounded by very capable lawyers. You know what her personal financial capability is to pay top flight lawyers to represent her in a criminal context? I don't know. I don't think she's independently wealthy. The third category is everybody else. And that's what this is really about. It's really about trying to intimidate other people. In addition to vengeance on people you hate. It's sticking heads on pikes or at least slashing at people so that other folks who would dare to speak the truth or sue you or run an investigation get the message that they shouldn't do that because it is not in their long term best interests of their health. And you know that is as toxic in a democratic culture as it is possible for anything to be. The market's uncertain, revenues tight and hiring on hold. That's why results driven companies are using upwork to keep work moving. Go to upwork.com today and start hiring proven freelance talent fast. No bulky overhead, no rigid long term contracts. Just the right expert right when you need them. Work smarter and faster with Upwork. Go to Upwork.com now and find your freelance expert. That's Upwork.com post a job for free and get started today.
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Of@Swepe.Com billing yeah, I think that that's. I think that's exactly right, Bob or Anna, like, if you feel free to, like, pitch in here. I think that this is, I think that this is exact. Bob, I know you're very worried about also like the Justice Department and how this kind of how the Justice Department recovers from this type of moment, which is not about like, which is kind of to Ben's third point, but not as particularly so. I'm curious about your thoughts on that.
- [26:30]
B
Just a couple of things real quickly. I agree with Ben's overall assessment. I don't disagree with any part of it except the extent I would put my emphasis a little bit on how dangerous it would be if this had to go to trial. Not because I have any concerns about how the trial would turn out, but because the message then to the government is, well, we can put them through misery, we can drag them all the way to court. And then for the people who are potentially in Letitia James category number two, or for all the people who are in category number three, that's a really bad outcome. If you have a president who, as he said apparently to advisers counseling him against bringing this case, I don't care whether it has merit. And that's why I'm concerned that this case crash and burn fast. I do agree with Ben that if it's knocked out on the basis, and I tend to agree, I'm not an expert, but it seems to me upon review that there's a huge problem with the Halligan appointment. I recognize that leaves the question of guilt or innocence a little, somewhat vague. I don't think it's left vague. If he wins on a malicious or selective or vindictive prosecution theory, then I think it'll be very clear to people what motivated the president, that it wasn't the merits of the matter. And then last thing, I'll just say in response to your a question about how do I think about the Department of Justice? We need some reform. We need reform because I think a line has been crossed that will probably not be Fully recrossed or reliably recrossed again in the future, we may have another Jimmy Carter who comes in and says, I'm appointing Griffin Bell and I'm keeping my hands off and I'm restoring the Department of Justice the way it was before Richard Nixon became president.
- [28:15]
A
President.
- [28:16]
B
But we can't count on that. And the line has been moved. And there's also going to be, unfortunately, probably a lot of pressure for score settling. I think in these circumstances, it really is important for people to recognize that the norms that we relied on to protect against wholesale politicization have failed and they'll be revived maybe periodically, to some extent, but they no longer have the vitality they once did. So whether it's grand jury reform, reform, reform of the doctrine to make it less complicated and less difficult to bring selective prosecution cases, a strong civil society response, a combination of all of those, as I have argued, we need reform.
- [28:55]
C
Yeah, I mean, I completely agree with that. And as I watch kind of in the last nine months, in the last five years, there has been kind of a strategy shift back and forth from how to respond to MAGA and the right and this kind of push towards a total warfare mentality on the left of kind of like we have to meet them where they are and we're fools for kind of adhering to principles and the norms as they were. This is a new world. And I think a lot of us go back and forth of like, how much anything can ever be set back right to where it was or how much we should stay in the place of like when, like kind of the left or whoever gets in charge, is there going to be a return, a push in this Jimmy Carter sense is a wonderful example like, of a return to kind of like this type of norm setting and everything else. And I'm kind of just curious, like, how, what you think the timeline of how quickly this will crash and burn? Like, I just like kind of as you're like watching like kind of this happen and like everything that like, you know, and, and how that's actually proceeding in open court, like, what do you think the timeline is going to look like? What's our over under, so to speak, of like, you know, when are we going to know if this is going to trial? Which would be, as Bob said, in one type of particular catastrophe, but you know, on the other hand, a different type of thing. If this just kind of gets disappeared very quickly, that will kind of incite a new level of kind of criticism from a new level of criticism and maybe we don't know what the response from the President will be, frankly, if this gets disappeared quickly. So I'm just interested in your speculation on some of that and kind of your actual. On the ground, what you're seeing.
- [30:41]
D
Yeah, I mean, I think it depends on what some of the choices that are made by the defense team has been kind of detailed a few minutes ago. You know, I think that it's very likely that we might see a motion for a bill of particulars as one of the first kinds of substantive motions that is filed by the defense team. That is, that type of motion is one that basically asks the prosecution to kind of further detail the actual, you know, basis of the, the state's case in that, you know, here we have this indictment that is so sparse and so vague that it kind of doesn't, you know, it really doesn't put the defendant on notice of, like, what actually is the basis, what they're being charged with? Yeah, well, he knows what he's being charged for, but what is, you know, what is the actual substantive conduct that is being charged? It, it's, it's kind of just unclear. So we might see something to that, to that effect. You know, I will mention, too, that it's a while before Comey's first appearance. I believe. I believe it's October 9th. Is that right, Ben?
- [32:09]
A
Yes. The arraignment isn't until the 9th.
- [32:12]
C
Okay. So we've got like a couple of weeks. So nothing's gonna happen to arraignment.
- [32:15]
A
I've never heard of an arraignment in an unsealed case that takes two weeks.
- [32:20]
D
Yeah, it's usually.
- [32:21]
C
I was also wondering about that.
- [32:22]
A
It's usually something you do like the next day or two days later, and I have not seen an explanation for why you would have. I mean, granted, there's Yom Kippur, but I don't think that would hold up either Lindsey Halligan or Pat Fitzgerald or Jim Comey.
- [32:45]
C
Yeah, I'm sure that there's some atoning to do, but still not, not that.
- [32:50]
D
That part is, is quite odd. And it struck both Ben and I as being weird that it is such a long Runway between now and the arena indictment. I will say there's some, like, right wing chatter, and as far as I'm aware, this is all just speculation and wishcasting of people claiming that this is like a placeholder indictment. That, you know, it's, it's that it's. It may very well be that the government's going to seek a superseding indictment that will include, you know, know, some kind of grand conspiracy charge, because that's what people on the right have been claiming for a long time. So what Tulsi Gabbard had alleged about this conspiracy that existed between Brennan and Comey and people in the intelligence community, I think that's really unlikely. But you know, it is something that people who are pretty in the know in terms of what this government is doing and planning, people like Mike Davis, Davis, who is very close with people who are the top brass of the Justice Department, are making these kinds of statements about some kind of superseding indictment. My understanding is that you would still have to meet the statute of limitations for any kind of the false statements related charges because it's a five year statute of limitations. But, but of course, if they're trying to bring some kind of conspiracy charge, they might have some kind of, you know, more time. And then finally, what I'll say is that if there is the decision to move for a motion to dismiss based on selective or vindictive prosecution, you know, you can get discovery on those. It's. It. These are the types of motions that are so hard to win and it's even, even hard to get discovery on on those types of motions. It's a really high threshold. But here, of course, this is as we've discussed. I mean, look, I spent 10 minutes. Oh, sorry, go ahead, Ben.
- [35:05]
A
I was just going to say it's very hard, but you don't usually have a situation in which the president publicly.
- [35:13]
D
Right. That's what I was about.
- [35:15]
A
Removes the prosecutor who won't do it and then go back to Bob's quote of the President before says, I don't care if it has merit.
- [35:26]
D
And I mean, look, I love a fact pattern.
- [35:29]
C
I mean like the deletion of the truth social tweet, like is actually insane. Like the, the existence of it and then the deletion of it. I don't know, I think the combination of the two.
- [35:39]
D
He reposted it, but just clarified, he, he posted it, deleted it and then reposted different version of it. But all of which is to say that, you know, I spent 10 minutes over the weekend, I like put a timer on and I was like, I'm going to see how many statements that would support a motion for selective or vindictive prosecution I can find over the years of Trump saying it about Comey that within 10 minutes. And I within 10 minutes found like over two dozen public statements that you would file in a selective or vindictive Prosecution motion. They are. And it's just for years, since 2017, it is over and over and over again of Trump saying Comey is guilty of something. He's never really saying what, but he's calling him a bad, bad, bad, bad, bad guy. You know, he's saying that he's guilty, he's saying he needs to be in prison, all kinds of, of stuff. Even making statements about Pat Fitzgerald, Comey's now attorney. There's one clip that was interesting. That was when Trump was discussing why he commuted the sentence of Rod Blagojevich, the former Illinois governor. He says, yeah, it was the Comey gang, Fitzpatrick, he gets the name wrong. It's Fitzgerald. And even though Comey had nothing to do with the that prosecution, but it all of which is to say that there's so much public evidence that I think it is very likely that at the very like it, it seems like a winning motion, but at the very least you're probably going to get discovery and I think that that could draw things out a little bit more. So I don't know, to answer your original question, Kate, exactly what the timeline is, but I'll just say that there, there are things that are contingent on what the strategic moves by the defense are. And then also finally, what I'll say as well is that this is a false statements case. Like, shouldn't be that complicated in terms like we don't have like we did in Trump's classified documents case, like SEPA stuff, you know, it's not going to be. Although the selective or vindictive prosecution thing could stretch things out. I don't think this is the kind of case that's gonna take years to go to trial at all. It should be pretty quick.
- [38:13]
C
Bob, do you agree with that? And like, what, what do you think is better for kind of the re. If we are gonna reset norms, if there's ever gonna be kind of a retaking of kind of the norms of the Justice Department, do you think it's better that like, obviously that like the vindictive prosecution motion go forward, that discovery go forward, do you think?
- [38:32]
D
I don't know.
- [38:32]
C
I doubt but that this quietly slinks away and is dismissed for lack of on other grounds? Like should Comey make this into a vindictive prosecution case and is there merit to that? Or should we, or should we kind of be moving away from just trying to make this go away as soon as possible.
- [39:00]
B
Again, I think it's important that this stand for something now. Obviously, Jim Comey has to do what he has to do to defend his personal legal interests and his reputation. I understand that he's been charged and he has an enormous stake in the outcome as an individual. The case, however, has significance beyond the adjudication of his guilt or innocence. It has significance in, as we talked earlier, incentives and disincentives to executive branches branches to continue to push in the direction of this all out retribution. I'm not clear on the timeline. I agree with Anna. It seems uncertain to me. It depends on any number of things. We already have an arraignment that's delayed until October 9th or set for October 9th. I don't know what's going to happen next and sort of what that's going to mean for the schedule Superseding indictment. Who knows? Donald Trump in an Oval Office comment or series of comments, extended comments that he made, made within, I don't know, 24 hours of the Comey indictment. I don't recall exactly talked about how Comey was and he didn't put it quite this way. But this is the gist of it. Sort of one participant in a broad conspiracy against him that as far as I could tell seemed to encompass virtually every senior member of the last two administrations, at least the most senior members. And so who knows? Who knows. But I do think that it's extremely important, not that it will accomplish the goal alone that this case be handled in such a way that Jim Comey can meet his legitimate legal requirements, personal defense requirements, but that it speaks loudly and clearly to the fundamental principle that has been violated here. I mean this is the got to start drawing that kind of line right now.
- [40:47]
A
Yeah, I will just add to that. I agree with that entirely. And there is a tension in what Bob describes between the interests of speed and the interests of definity and the power of the statement and the interests of what precisely the statement is. You could. Because again, the fastest way to resolve it might be on the basis of some relatively minor error like that Halligan is not validly appointed. The slowest way to resolve it might be to go through the process of litigating a vindictive prosecution motion and getting all the discovery and building that record. And just think how shocking that record must be. That's not public given what we have. That is Right. What must the conversations between the president and and Pam Bondi have been like? Now they're going to assert executive privilege.
- [41:57]
C
Well, conveniently we know like what.
- [42:02]
D
We.
- [42:02]
A
Don'T know all of it. Right. And I mean that process of creating the record that is most powerful is not consistent with the flashbang approach to resolving this quickly. And, you know, so there's a difference between speed and definity. There's also a difference here between Comey's personal interest in vindication. And this is a proud man who believes very deeply in telling the truth and in that. I'm, you know, I have not. We're not, I'm not channeling anything from him here. But this is somebody who, you know, people love him, people hate him, people blame him for Trump's election. People think whatever they think of Jim Comey, he's not a liar. And the desire to come out of the this without the stain of, yeah, he may have gotten or he got away with it, but he lied to Congress, he will want to show that he did not lie to Congress. And so those various things are all interests of the defense. And actually putting a defense together that is going to do quickly embarrass the hell out of Lindsey Halligan and Pam Bondi and Donald Trump and all their works and allow Jim to walk away and say, they accused me of stuff and it wasn't true. And as was found, I think that's a tricky situation.
- [43:51]
D
I have a question. I'm curious, curious. On the subject of a vindictive prosecution motion, one of the things that was reported that was remarkable ahead of this indictment was that a declination, a detailed declination memo had been prepared by prosecutors in the Eastern District of Virginia, and it detailed all the reasons why they didn't think that there was probable cause to move forward with a prosecution of Comey on these charges. It was reported that when Lindsey Halligan arrived for her, you know, within the first few days of her arriving on the job, this declination memo was presented to her. So she was apprised of it and then move forward with the charges. Anyway, I'm curious because I would imagine that in a, a vindictive prosecution motion, it seems like it's relevant that there was this assessment that there was no probable cause. But following these public statements by the president and installation of Lindsey Halligan, the fact she's apprised of it but moves forward anyway, that seems relevant at least to a motion. Is that the kind of thing, though, that would be discoverable if you got discovery on that motion? Because I'd assume there'd be privilege issues and assertions by the government with respect to that declination memo. Ben and Bob, do you have any thoughts on that?
- [45:35]
A
I would defer to Bob. I'm not sure that I'm Not, I mean, it's clearly attorney work product. On the other hand, and the Justice Department concluding and advising the prosecuting attorney that you are not factually guilty of this and that it is unethical to bring a case would surely fall into the category not of exculpatory evidence, but of bad faith. And so I don't really know what the. I've never studied this question under privilege law and wouldn't venture a guess as to how a judge would likely answer it.
- [46:22]
B
I agree with Ben, by the way. For my own part, I'm not sure. I'm trying to think that through. Now. How would this be litigated? Obviously, we'll find out if it, if it is litigated. And what sort of defenses would be put up by the administration against discovery. Just to put one fine point on the factual record that has been sort of public so far, what is known publicly, what is extraordinary is not just that Lindsey Halligan was appointed because he was unhappy with Siebert. Who would advise him that he shouldn't bring the case. There was, by press reports, this briefing on the merits of the case by prosecutors who, however they argued it, did not believe that the case merited being brought, brought within 72 hours. This entirely inexperienced, never before criminal prosecutor went ahead and did it anyway. I mean, when you talk about what quality, what, what competence within the meaning of the professional code of responsibility she's exhibited, she's facing experienced prosecutors who are telling her there's a problem with the case and within I don't know how many hours, because she obviously didn't work 72 hours straight, she just decides to go ahead with it anyway, which is consistent with her expect that she's carrying out a directed responsibility. She's carrying out a deed she was directed to do by the president. And then add to that one more point, no prosecutors appeared with her in the courtroom. It is my understanding none of them signed the indictment. It appeared that the professional prosecutors took a total walk, even apart from the resigned former interim U.S. attorney Eric Stone Siebert. I don't know what to say, but it seems to me, not putting a too fine a doctrinal point on this, that as hard as selective prosecution cases are to be to bring, I would say on the face of it, I wouldn't be terribly discouraged that we could find a basis for one successfully to be brought here. I mean, this is just an extraordinary set of facts.
- [48:27]
D
Yeah. Just one thing to add to. We not seen any notices of appearance for any, you know, real prosecutors beyond Lindsey Halligan. In the case yet either. So that's, and that's really remarkable.
- [48:42]
A
Can I ask a general question to the group? Can you name a case in the history of the Justice Department that comes to mind as a bigger intentional abuse of the prosecutorial power than this one?
- [49:06]
C
I mean, no, and I also like, I mean it's, I mean there was mention of this in a lot of the coverage, but like, I mean you saw even like, I mean I cut my teeth in like this whole world. I'm just gonna display my age with like the Attorney General firing scandal with like Alberto Gonzalez, which seems freaking quaint next to like, like what's happening in the last, in the last kind of 72 hours. I mean, but I'm not the person to ask. Bob would have much more to know. But like I just, you know, I, this is like blowing my mind, you know, in. And I, you know, I'm not even as deep in this as Bob and Ben and Anna. You are.
- [49:47]
B
Well, to me and I'm sorry, did you want to step in here? I was going to say to me, there is, is an example in the past, it may not be the only one. I haven't researched the entire history of DOJ abuses, either real or attempted, accomplished or attempted. But there were abuses of this nature in the Nixon administration, particularly in supporting a cover up of the Watergate break in and associated criminal offenses. Here is the extraordinary difference here.
- [50:19]
C
Here.
- [50:21]
B
He has in effect announced publicly a program of retribution in which he will superintend the pursuit, the criminal pursuit, the building of criminal cases against his enemies. Richard Nixon never did that. Nixon, if you look at his public statements, made an enormous point of saying, even though obviously in critical respects he didn't mean it, at least in that case, that the case needed to be investigated and that if Archibald Cox had to go, another special prosecutor had to take his place and so forth. He paid lip service to the norms into the rule of law even in those circumstances. And we can discuss why that would be the case. That's not true here. Now it is true. To be fair. Periodically Trump seems to remind himself that he should say certain things. So he says it's a great case in I guess the edited version, Anna, of the true social posting of the original direct message, I don't recall, but basically said it's a great case. At one point musing about it could have been James, he said, well if she's not guilty then that's one thing, but she's guilty of something. I don't recall exactly what it is so every now and then he seasons his anger, his expressed anger and desire for retribution with a occasional detour into rule of law and norm articulation. But that's not typically what he does. And that Marxist administration is unique in the history, in my view, certainly in the modern history of presidential relationships to the Department of Justice. This is a program. This is a program clearly articulated and now pursued, in fact. And that makes it distinctive and unlike any other.
- [52:15]
C
I think that that's a really great way of framing it. Bob, we have to wrap because we're doing a really crappy job of making this short, under 45 minute hits on kind of taking this stuff on. But there was just so much that we delved into and I actually kind of want to foreground, hopefully, Bob, you can pause possibly, we can find a time and you can come back and we can do another one of these later in the week when there's a little bit more on. And I actually think that Anna's question is outstanding and like such a, such a deep and interesting question of analysis. And so like, I would love to kind of just talk about that a little more. And we didn't even get into. Ben is like, you know, as, you know, like kind of the, the presidential memo that has come down, the executive order that has come down on antifa and kind of the, and politicized speec and gatherings and so politicized groups which is deeply related to kind of all of this and needs to kind of be part of the picture. And so let's do this again sometime maybe in the next couple of days and will be the day after, the day after we can make a whole new podcast about it. We're not gonna do that. Like I'm just. But this has been wonderful, Bob, thank you so much for joining us. Anna, Ben, it was great to see your faces as always. And you know, may, you know, we're cursed to live in these interesting times. At the Department of Justice, the Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfairmedia.org the podcast is edited by Jen Patya and our audio engineer. This episode was Ian Enright of Goat Rodeo. Our theme music is from Alibi Music. As always, thank you for listening. Imagine a world of extraordinary comfort where Bowen Branch Bedding wraps you in the softest. Embrace the coziest experience made from the world's finest 100% organic cotton, all so you can slip sleep better. Start building your fall sanctuary with Bolen Branches Iconic Signature sheets made with a buttery, breathable weave that gets softer with every wash. Enjoy 15% off your first set of sheets with free shipping and returns at B O L L& Branch.com with code BUTTERY. See site for details and exclusions.