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The Lawfare Podcast
Lawfare Live: Discussing the Hearings on James Comey’s Prosecution and the Alien Enemies Act
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- [00:01]
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Benjamin Wittes
And we're live. It is Wednesday, 19th May, November 2025. It is 4:00pm in Washington and you are watching Lawfare live the now. I'm Benjamin Wittes, editor in chief of Lawfare and I am here with not one, not two, but three Lawfare senior editors who attended the hearing in the Jim Comey case and, and one lawfare senior editor who attended a subsequent oral argument in the JGG case before Judge Boasberg. And folks, we're going to talk about it all. There was a lot of fireworks today. With me are Anna Bauer, Molly Roberts and Roger Parloff. Welcome all.
- [01:44]
Roger Parloff
Thank you.
- [01:47]
Benjamin Wittes
Roger. Get us started. I thought we were going to have a hearing today on Jim Comey's motion for selective and dismissal for selective and vindictive prosecution. But once again, this is now the second time this week where things have got a little bit, got ahead of us a little bit. What happened at today's hearing in the Eastern District of Virginia.
- [02:17]
Roger Parloff
Yeah. In Alexandria began with it's a, it's a motion for to dismiss based on vindictive and selective prosecution. We spoke almost only about vindictive today. I think it was only about vindictive. And Michael Dreeben, the former, the former deputy solicitor general was presenting for Comey. Quite, quite powerful presentation. And it was obvious that the judge was, you know, there was a lot of discussion of direct, actual vindictive prosecution. You know, you can prove vindictive prosecution by having direct evidence that the government has a vindictive intent, a motive, or you can go for, you know, there's a reasonable likelihood and we want discovery to prove it. There was nothing that I heard that I remember about the Second Avenue. It was all direct. It sounded the judge didn't ask about discovery. The only one that brought up discovery was Tyler Lemons for the government when he was trying to avoid answering some questions and said that should wait until we get to discovery. Where it began to sort of get off the rails was that you Know, I think the two main government arguments are that what's called imputation, that you can't impute Trump's animus and vindictiveness to Halligan. You can't proved that.
- [04:07]
Benjamin Wittes
And, and just to be clear, my understanding from the government's briefs on that is that their argument is that the relevant actor is Halligan because she is the one who went into the grand jury and sought the indictment. And the fact that Trump may have animus, which they actually deny, should not be imputed to her, even though he may have appointed her as an expression of that animus for this very purpose. Walk us through that. What is the argument? That under those circumstances, one shouldn't impute the President's animus to the hand picked expression of the animus.
- [04:53]
Roger Parloff
Well, there's some case law that isn't very similar to this where, you know, like one US Attorney who has animus hands it off to another US Attorney and then there's no proof that the other US Attorney didn't make an independent decision. That's a very different situation than we have here. Dreeben was extremely, he's a class act. At some point, the judge was saying to him, basically your argument is that Halligan is a puppet and she's a stalking horse. And Dreeben said something to the effect that I'm not going to characterize my colleague, but she did do what President Trump wanted her to do when the.
- [05:44]
Benjamin Wittes
Judge already believes it. As an advocate, you don't necessarily need to say it.
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Roger Parloff
I think that's right. But the other thing that, that sort of got us his other big argument early on was, well, you don't have to interfere here because a duly constituted grand jury independently decided that there was sufficient evidence. And he sort of said, well, hold on there, I think we're gonna need to come back to that. And he did come back to that. And that's where he started digging and it developed. We got the factual, we got more information about the factual situation there. Dragged out of the government. One other thing, and I'll let other people have a chance here. But there was one other. Oh, the judge was also interested in, you know, there's been a lot of evidence from newspaper articles. What can I can. I mean, when a newspaper article reports that Trump said something, I can rely on that. Right? And lemons. AUSA lemons. Agreed. Yeah, you can rely on that. That's true. But you shouldn't rely on news reports that say, you know, Siebert was reluctant to bring the prosecution. And that got him into, well, actually, have you seen a declination memoir? And then there was a sort of long song and dance where he said he hedged and hawed and Nachmanov grilled him. And eventually he said. Nachmanov said, well, is somebody instructing you not to tell me? I mean, you're the attorney of record. You. You didn't ask if there was a declination memo. And he said, oh, I asked. And did you get an answer? Yes. And what was the answer? And he hedged. And then the judge said, is somebody instructing you not to answer? And he said, the deputy attorney general, yes. And. And why? And. And he said, well, the deliberative process privilege. And we haven't made the decision whether to waive that yet. So that was another sort of. Sort of big thing that dropped in our laps.
- [08:22]
Benjamin Wittes
All right, let us unpack this in order, Molly.
- [08:27]
Roger Parloff
We.
- [08:29]
Benjamin Wittes
Let's start with the selective or vindictive prosecution, which argument, which is, in fact, in this case, a vindictive prosecution prosecution argument. You have been thinking about these select vindictive prosecution motions in both this and the Letitia James case. What are the. What were the basic components of the argument today and what can we glean, if anything, from what judge about what Judge Nachman off is thinking on the subject?
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Molly Roberts
Yeah. So Comey's motion included both vindictive and selective, which are separate standards. But the hearing did focus only on vindictive, which to me makes sense because I think he has a much stronger vindictive claim than a selective claim. That might not be as true of Letitia James, who I think has a somewhat stronger selective claim because she's being prosecuted on allegations of mortgage fraud. And that's pretty concrete thing. And you can look at a lot of examples concretely where there is evidence of people who are similarly situated, which is the standard there, doing the same crimes that she or allegedly doing the same thing she is accused of doing. In any case, for vindictive prosecution, the standard is that the defendant has to show that charges are in retaliation for exercising a legal right, although in this case in court, they kind of agreed that it doesn't necessarily have to be in retaliation for First Amendment expression, which is what would be at issue here, Comey's criticisms of President Trump, but also that you can't just be vindictive and prosecute someone because you don't like them, and you have to show that the prosecution wouldn't have occurred but for the vindictive motive. So those are kind of the two prongs and that's how Michael Dreeben proceeded today. He started with going through, through the question of vindictive motive. And he laid out a whole lot of evidence. It's the same evidence more or less as is in the 60 page appendix in the motion. His argument was basically not only are there years, almost a decade now of statements from President Trump saying that he essentially doesn't like what Comey did in his job as FBI director and he doesn't like things that Comey has said, but also that Trump made those statements when Comey made statements about Trump and that when Comey went silent, Trump went silent. So his point there was it's very clear what Trump is trying to achieve. He's trying to use the threat of depriving Comey of liberty as a cudgel, I think was the word he used at one point to get him to stop expressing dissent. So that was the vindictive motive part of the argument. And then the next part would be the but for this prosecution wouldn't have been brought otherwise. And that's where the declination memo is really important, for one thing. And that's where it's also important to look at whether Lindsay Halligan was indeed plausibly acting independently or whether she was acting only as an agent, a stalking horse, a puppet of Trump.
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Benjamin Wittes
And what did Go ahead. I'll get to you in just a second, Anna. But did Nachman off at all show his hand? I mean, Roger suggested earlier that he does not seem especially interested in discovery, which would be the step you would take if you thought there were something here, but not enough to get over the hurdle without it. So does the fact that we didn't really even talk about discovery suggest that he's inclined to just grant it?
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Molly Roberts
Well, you know, he said usually this would be decided from the bench and I'm not going to do that because the issues here are too weighty. But I think certainly he showed his hand when it came to the question of the declination memo. I mean, I think his point there was less that I might just grant it and we don't need discovery and more that this is something that perhaps you should have provided already. And Michael Dreeben mentioned as well and other I think Roger and Anna know more about the Abrego Garcia case than I do, but mentioned there that this was made available before there was any order for extensive discovery. And so why isn't that available here, too? I think the way that he most showed his hand from my point of view, was when he brought up this statement, and Roger mentioned this, the statement made to the press, which is not one of the exhibits that the defense introduced. This was just something the judge was bringing up. And he kept reading this statement back. And the statement was basically, one way or another, and this. Trump says this to a gaggle of reporters very soon before the indictment is ultimately handed up. One way or the other, they're guilty, they're not guilty. We have to act fast. If they're not guilty, that's fine. If they are guilty or if they should be judged, they should be judged, and we have to do it now. And he read that multiple times, and he was really pressing the government on how do you square that with, as Tyler Lemon said, with the idea that it doesn't matter if you don't like someone, with the idea that you make your independent judgment, how do you square that? And he brought that up repeatedly, and I thought that was pretty revealing.
- [14:05]
Anna Bauer
Can I chime in here? Okay, by all means. I, I thought that read to me, and look, I might be overreading it, but it, it read to me like there, there was not much of an emphasis from him on what do I do if I want to go to discovery. He kind of repeatedly came back to, you know, because one of the arguments that the government is making here is, oh, the defense is just relying on innuendo and speculation and third party media reports that have these anonymous sources. And he kind of kept trying to pin them down on the fact that, well, I have these statements that the president himself has said, or I have the fact that Eric Siebert resigned on X date, you know, despite the efforts by Tyler Lemons to, you know, portray these things as some kind of third party circumstantial source. Nakhonov kept coming back to the idea that this is direct evidence. And I think that it was telling that he really tried to pin Tyler Lemons down on that quote that Molly explained. And, and how it fits with DOJ policy in which you are supposed to have knowledge or reasonable belief that the case that you're bringing to seek an indictment before would be sufficient to get a jury to convict beyond reasonable doubt. And like, you're not supposed to bring an indictment or seek an indictment when you don't know whether there or you don't have a belief in whether they're guilty or not, which seemed to be the kind of thing in Trump's statement that was interesting to the judge. So I got the sense that, you know, he's thinking a lot about not so much discovery but how to craft an order in which maybe he does dismiss the case based on this kind of direct evidence and direct statements. What I'm curious about from Roger and Molly that, you know, I was in the main courtroom. It's the acoustics in there are harder to hear. I think my understanding. I think Roger and Molly, because they'd already gone in whenever I. When I. When I was in the different line, I think they were both in the overflow room. So I'm wondering if they have a better sense of this. One thing that the judge asked about a number of times was this question of, like, under the standard for vindictiveness with respect to retaliation. Like, typically, you've got to show. I mean, there's different theories, but one of the ways that you can do it is to show that the government, by bringing this criminal prosecution, is retaliating against you for exercising some constitutional right. Though typically in the cases, it's a constitutional right that you've exercised in the context of the criminal process. Like, you refuse to plead out right, you've exercised some kind of trial right. You know, that kind of thing. Here the argument is that Comey was exercising his first amendment rights to speech, and the judge asked a few times about, you know, whether that is sufficient to show retaliation. He seemed to be focused on that. I was a little bit confused when he specifically went to Tyler Lemons and said, what is your take? Are you conceding that, you know, it can be retaliation in response to a person's first amendment rights? And then he went into this weird kind of monologue about, like, prosecuting someone based on how prominent they are because it has a more of a deterrent effect or something. I couldn't just. I just couldn't quite hear him. So Roger and Molly, like, what. What was your take in terms of how the judge handled that specific question and what limit the government's response was?
- [18:39]
Molly Roberts
So I think it was odd to me. The government seemed not to want to argue that it had to be a criminal right, even though they'd indicated that they were going to. Essentially, you're correct. They conceded not only that it could be in retaliation for a constitutional right, but also that even if there weren't a constitutional right, and it was just a question of, can you retaliate against someone because you don't like them, they conceded that that also is impermissible, which I think Michael Dreeman seemed a little surprised by. He came up in the rebuttal, and he said, oh, it turns out we agree here. So I was not expecting that at all. Thank you.
- [19:19]
Anna Bauer
That's how I understood it. But it was just so surprising to me that I was like, maybe I've got this wrong.
- [19:25]
Molly Roberts
That was when Tyler Lemon said the thing where he said, and you know, I don't like a lot of people I prosecute. I don't like child rapists. And then later he was like, in no way do I mean to say that there's a comparison between the defendant and a child rapist. So it was all very odd.
- [19:41]
Benjamin Wittes
Hey, folks, Ben Whittes here.
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- [24:01]
Benjamin Wittes
All right, let us turn now to the turn in the hearing that was, shall we say, a bit of a surprise. Comey has a separate motion about abuses of the grand jury process. There's a magistrate judge opinion from earlier in the week that we talked about on a live stream on on Monday that raised this issue. But all of a sudden, Anna, this question, this issue goes from a selective or vindictive prosecution motion to to a is there even a valid indictment in front of us question. And so first of all, give me the mechanics of that. What what is there's they're not here to discuss Comey's motion about he hasn't even filed his motion about there's no valid indictment yet that's just been invited by the magistrate judge. So how did we get on the subject of what the whether the document that he is being made to answer for is the real is a real Valid indictment at all. How did this subject come up?
- [25:25]
Anna Bauer
Yeah, so I'm trying to think back. I mean, I think that part of it had to do with this argument that the government kept making regarding the idea that in Tyler Lemons preliminary speech, he keeps going on and on about how the defense is trying to defeat the will of a grand jury. It wasn't the U.S. attorney who brought this who like, you know, made this indictment happen. It was the grand jury who voted it out and da, da, da, da, making that type of argument of like it's the will of the people. And at one point the judge jumps in and says, well, you know, on that point we've got in, in this litigation, in a separate aspect of this litigation, referring presumably to the litigation that's going on before the magistrate judge, which itself is like a whole other kind of a thing that we could get into that as a long backstory. It started with a filter protocol motion. It turned into, you know, you've got to turn over grand jury materials and the magistrate judge.
- [26:36]
Benjamin Wittes
And we did. Just for those who want to deep dive on that subject, we did a whole separate livestream on it on Monday that is still available on the site. And so let's skip over the backstory of that for now. We've got another discussion of that for those who want it. So let's bracket that for now.
- [27:01]
Anna Bauer
Okay, so bracket that, that there's in this, in this other area, the litigation, this has come up and the judge starts asking questions about exactly what happened with the indictment process. And been as best as I can tell, again, it's very complicated and I don't want to get too in the weeds with this. So I'm going to try to just do a really quick overview of what it seems, what seemed to be suggested in the questioning of Tyler Lemons. Then ultimately, remarkably, Lindsey Halligan gets up at the lectern and addresses this. But essentially what happened is the. There's a three count indictment that is presented by Lindsey Halligan to the grand jury and evidence regarding that indictment. The grand jury deliberates for two hours and doesn't vote on that indictment that was presented. This original indictment. It seems to be the case that according to grand jury foreperson, there were two of those counts that the, the grand jury wanted to issue an indictment with respect to. And in the first count, they wanted to issue a no bill. And this is somehow communicated through the grand jury coordinator to the government or to Lindsey Halligan herself. It's kind of unclear exactly how it gets back to the Government. But this, this no bill on count one gets back to Halligan's office. They redraft an indictment that just includes the two counts that the grand jury wanted to return. A true bill. But it's very confusing because when they then go before the magistrate, there's the original indictment that the grand jurors actually voted on, and it includes a report of the grand jury that says that there was a no bill with respect to the entire indictment. It doesn't specify just count one. On the other hand, there's also this other charging document that has counts, just two counts in it, the second one that Halligan's office had drawn up, and it's supposedly a true bill. But what comes out in this hearing today is that that second indictment was never re presented to the grand jurors. It just happened that the foreperson signed it, Halligan signed it, and then handed it up. So the grand jury never actually saw that second version of the indictment. And the one that they did actually vote on is, you know, the one that it said, like, we find no indictment in this case. However, according to the transcript of the presentment, the magistrate judge asked some questions about this, got the foreperson to kind of pencil in the. That the no bill was as to count one only. But that's not the operative indictment in the case. The operative indictment is the second one that the grand jury never saw and never voted on. So all of this comes out and. And it was honestly a really remarkable moment in court. There's only like a few days in court that I've had that I felt quite like this, where everyone was like, oh, something is really happening here. And something is really being revealed here because you could tell the judge was very concerned by the fact that the second indictment was never presented to the grand jury and voted on by them. There's a D.C. circuit case called Gaither, I believe that's how you pronounce it. That basically back in the 60s or 70s, not quite similar situation, but similar enough situation happened, and the D.C. circuit developed what they call a flat rule where basically like, if you don't repackage, if you mend the indictment, don't repackage it, submit it to the grand jury for a vote. There's kind of a rule of dismissal. This is the 4th Circuit that we're dealing with in the Eastern District of Virginia. But the judge nonetheless raised this case and, and said, you know, I want you guys, whenever you're thinking about this issue and briefing it to, to. To address this case. And Michael Driven as well. You know, after this revelation comes out, he gets up in reply and he says, your Honor, there is no indictment in this case if what the government is saying is what I think it's saying. And that would be a compl. The bar to further prosecution. So it was really remarkable.
- [32:19]
Benjamin Wittes
All right. But I still don't have an answer, Roger, to my original question, which is how did we go from talking about selective or vindictive prosecution, a motion to dismiss based on that, to the mechanics of whether the grand jury was presented with the indictment at all?
- [32:43]
Molly Roberts
And.
- [32:43]
Benjamin Wittes
And can you walk me through that?
- [32:47]
Roger Parloff
Yeah, it was what Anna said. It was that very early on, he starts to make this argument about this independent, you know, actor that is bringing the indictment that can't possibly be biased against, you know, the grand jury isn't vindictive, and they are the ones that indicted the. We have a duly. I forget the word, you know, constructed grand jury. And then he says, well, actually, I think we need to talk about that.
- [33:22]
Benjamin Wittes
I see. So it was really the prosecution's reliance on the fact of the grand jury being its own actor that is not animated by animus, that then.
- [33:36]
Roger Parloff
That brings it up. I mean, I think he was going to bring it up because he's been reading what's been happening, and I think he wanted to get clarity what is going on here? And he got it. I think he got it. And now the question is what Anna said. How does. And that Gaither ruling, he asked them to, briefly, and it's not crystal clear. It was a worse situation there. In some ways. It's about something. It is highly technical. Apparently there's something called a presentment, where the grand jury issues a presentment saying, we want to charge this guy with grand larceny, and then the AUSA is supposed to draw up the indictment for grand larceny, and then they vote on that. And in this case, they issued the presentment, and only the foreman signed the actual indictment. And, you know, this was a situation where the guy had already been convicted and it's now on appeal. And so they issue sort of a prospective ruling, interestingly enough. And they do issue this flat rule that, you know, if it's not signed by, like Anna said, if it's not signed by at least 12 grand jurors, it's dismissed here. The question will be, well, you did have 12 that apparently, according to the foreperson, agreed, blah, blah, blah. So it's not perfect. And also, the other thing that's interesting about that ruling is that it said in that case, it said something like. I think it said, look, if it were looking backwards, what you would do is you would have to hand over the grand jury and minutes to the defense. So to at least, you know, let it raise this issue, that there would be a presumption of. Of. Of regularity if the foreman said this was okay. But you would need to turn over the grand jury minutes to the defense for them to try to rebut that. Anyway, like Anna said, it's not. It's. It's D.C. circuit, it's not 4th Circuit. But I think the grand jury minutes, one way or another, are going over to the defense, and it's a pretty weird situation. Wait, wait.
- [36:27]
Anna Bauer
I think this is important, and I'm not sure. I'm worried you're not going to ask about it, so I just want to say it. One other thing I will mention that we didn't really get to is that Halligan herself appeared at the lectern on this issue. And it was super interesting because, you know, Tyler Lemons, who joined the case after the indictment was already brought, is up there, like, fighting for his life, trying to answer these questions that the judge has that he just, like, kind of doesn't seem to know the answers to because he was not involved in the grand jury presentation. You know, he. He's. It's a lot of. He's just not sure, or it's my understanding that, you know, whatever. And so eventually, the judge just says, well, Ms. Halligan, your counsel of record in this case, you can come up to the lectern. And Lindsey Halligan makes her first, you know, substantive appearance before the judge in this case. And she really, in stark contrast to Tyler Lemons, seems to be pretty compact, combative or defensive, even in this very short exchange. You know, the judge is asking her pointed questions about how things actually happened with the grand jury presentation, and she is pushing back, saying, you know, but, judge, the grand jury four person appeared like the magistrate accepted this, and the grand jury four person said that there was a true bill returned with respect to counts. So and so and so and so.
- [38:11]
Benjamin Wittes
And.
- [38:11]
Anna Bauer
And at one point, did she say no? I think she maybe said no or something to that effect to the judge. I. Molly and Roger, maybe you got a better grasp.
- [38:20]
Molly Roberts
Yeah, she kind of. She kind of interrupted him when he was first. He was saying, am I correct that? And he started to, like, lay out the statement he was asking if he was correct on, and she sort of interrupted him before he was done with it and said, no, you're not.
- [38:32]
Roger Parloff
Yeah. And. And, and after that, he started to say something and maybe Molly caught it. And she said, okay. And. And I took it in a very.
- [38:44]
Molly Roberts
Said that she could sit down, I think. Yeah.
- [38:46]
Roger Parloff
Okay. And. And she sounded. It was not the way I would speak to a judge. It sounded surly and defensive, and there wasn't a lot did she tell the.
- [38:57]
Benjamin Wittes
Judge she wasn't really a judge, so she shouldn't have to be respectful to him.
- [39:05]
Roger Parloff
It was a strange moment I had.
- [39:08]
Benjamin Wittes
All this was off the record anyway. Don't worry about it, Roger. So, Molly, are there other matters that arose in this hearing that we should talk about, or does that cover it?
- [39:23]
Molly Roberts
I think we've gone through the bulk of it. Those were certainly the things that stood out. There was an invocation of Henry ii. Will not one rid me of this meddlesome priest, which I hadn't heard in a while. But that was from Dreeben saying, kind of talking about to what extent were Trump's instructions to bring this prosecution Instructions and to what extent can we infer that Lindsey Halligan took them as instructions? And the judge said, I believe that Henry II can't be binding precedent on this court. But I think I understand your point.
- [39:54]
Benjamin Wittes
So I am.
- [39:56]
Roger Parloff
One other.
- [39:57]
Benjamin Wittes
Yeah, go ahead, Roger.
- [39:59]
Roger Parloff
Just to augment what Anna also said about when Dreeben heard this news and said that the prosecution was barred, given that there's no indictment, it was specifically an oral motion to dismiss based on the statute of limitations. The statute ran out. There's no. There's no indictment. So he hadn't done that yet. That was new, too.
- [40:21]
Benjamin Wittes
So I have a question about Michael Dreeben's presence here, which I'm interested for any of your thoughts on, which is Michael Dreeben, as many folks listening will know and some will not, was the. Is. Was the Solicitor General's office's criminal deputy for many years. He was. He's one of the foremost criminal law experts around, at least not. At least out and not in academia. He is a very celebrated appellate law person. I don't usually think of him as arguing cases in trial court. And it seems to me if he's there arguing this motion, it is because they expect A, to win on it and B, for there to be an appeal that needs to be postured very well for the Supreme Court. That seems to me to be the reason you have Michael Dreebin arguing it at the trial court. And so the question is, do you agree with that, that if you're gaming this out from the Defense side, you're, you're saying we have a really good chance to win this on this motion, and we want to be thinking about five votes at the Supreme Court, even at this stage.
- [41:55]
Roger Parloff
Well, I just thought of it as. It is sort of a pure legal issue, and you want the best. But I think you're right. That makes perfect sense, what you're saying. Yeah, I don't know what others want.
- [42:11]
Anna Bauer
Yeah, look, I, I, I think that's right. Another thing I will say is just like the stark contrast between the level of skill and experience that Dreeman obviously has versus Tyler Lemons was just like, I mean, it's so clear. I don't mean that to be a rude remark with respect to Tyler Lemons. It's just that, like, it is no, like, real matchup. It's, it's just so obvious in terms of skill, experience, all that grasp of, of what's going on in the case, whatever, you know. But, Ben, also, and I don't mean to take over the moderation, but I, I do just want to stress, again, something that Roger said that I think we didn't quite explore, which is this declination memo issue, because that was the other really remarkable kind of surprise about this hearing is that Tyler Lemons, as Roger explained, was really put in a really awkward position by his client in that the judge directly asked him whether a declination memo exists recommending not to pursue charges against Comey. And he cannot answer the question because ultimately it comes out, he says that he's been directed not to by the deputy Attorney general's office on grounds that whether or not a declination memo exists is privileged. Not, not what the declination memo says, but just the existence of whether one, you know, is there. That was really quite remarkable. And then he ultimately, confusingly, too, goes on to say, what I have seen is written correspondence discussing, you know, debating whether or not to bring charges. It seemed to be that he was describing maybe, maybe a declination memo or a draft of one. I don't know. And then he outright was willing to say that he saw a draft prosecution memo. So it was all very confusing and quite extraordinary. And so I just want to emphasize that for people who. We didn't get much of a chance to discuss it.
- [44:57]
Aura Frame Advertiser
Yeah.
- [44:58]
Benjamin Wittes
I mean, is there more to say about. Seems to me it's a, it's clearly on the judge's mind. It's got, it's another pitfall for the prosecution here who has just to line up the pitfalls, you know, They've got the question of whether the prosecutor was lawfully appointed. They ought to. Fourth Amendment questions. They've got Fifth Amendment questions that. Both of which have now been raised by the magistrate judge that could. Either one of them could lead to the suppression of the indictment. The other could lead to suppression of key evidence. They've got the question of whether the grand jury saw the indictment at all, which, you know, I don't know what amendment that. I guess that's a due process issue, but. But apparently it's a Gaither issue. They've got selective and vindictive prosecution. They've got literal truth and fundamental ambiguity. And they've got this other question of outrageous government conduct, which Pat Fitzgerald has kind of promised or hinted at a motion on, but has not yet filed. They've got a lot of ways to trip here. And. And I've probably missed a few.
- [46:25]
Anna Bauer
Oh, also, don't forget the fact. Oh, go ahead, Roger.
- [46:28]
Nordstrom Advertiser
Sorry.
- [46:29]
Roger Parloff
Nakhmanov basically asked. He said, do you want me to decide these in any particular order? You know, because it's like this embarrassment of. Of Rich.
- [46:44]
Benjamin Wittes
Well, it's actually a really important question for him. I think it is. Because if you decide one of them and you thereby deprive yourself of jurisdiction to decide the others.
- [46:55]
Roger Parloff
Yeah.
- [46:57]
Benjamin Wittes
And you get reversed.
- [46:59]
Roger Parloff
Right.
- [47:00]
Benjamin Wittes
Then the case is suddenly live again. And I actually wonder if he may be looking to do a consolidated opinion that addresses several of them. But then the problem with that is, is that Judge Curry has a piece of it.
- [47:17]
Molly Roberts
Right.
- [47:17]
Benjamin Wittes
And she only has one of them and could beat you to the punch. And that one's actually the one on which the government's argument is a little bit stronger, which is the question of how. Whether Halligan is lawfully in the office at all. It's not a lot stronger, but. So I think it's a really interesting problem for Nachmanoff. Assuming. Assuming you would be inclined to grant several of these, which order do you do them in and do you do them one at a time? Do you say, I'm granting all this opinion to follow?
- [47:54]
Aura Frame Advertiser
Do you.
- [47:55]
Benjamin Wittes
How do you do it?
- [47:56]
Roger Parloff
He. He asked. Nachmanoff asked, do you want a consolidated ruling on some. And. And not. And Dreeben said, we think that might make sense. The crucial ones are. Which are not the two that. The crucial ones are this one, the vindictive prosecution and the unlawful appointment. So it sounded to me like he would like Nachmanoff and Curry to get together on timing. Curry has said that she is going to try to rule before Thanksgiving that's pretty. That's going to be pretty fast for Nachmanov to pull it together, but maybe they will try to coordinate and do that. I think Nachmanov was sort of thinking in terms of coordinating his. The ones before him, but the answer that Dreeben gave was those two.
- [49:02]
Molly Roberts
And then Dreeben did come back to it later after the revelation about the grand jury and the indictment, and he said that would be a threshold issue as well.
- [49:11]
Benjamin Wittes
All right, we are gonna wrap, but before we do, let's cross the river and go to a different court with a different judge where the government is also in a little bit of trouble. This is Judge Boasber of the D.C. district Court, who many of you will remember in the JGG case ordered planes not to take off for El Salvador. They did take off. A bunch of people were. He ordered them turned around. They were not turned around. And he announced that he was inclined to. That the government should. Should show cause why they should not be held in contempt. The D.C. circuit stayed that on a. For a rather long time and then threw a bunch of other wrenches in the gears. But today, Judge Boasberg was back, and he does not seem to think he has lost jurisdiction over the case, and he does seem to want. Want to go forward with a contempt proceeding. So, Roger, let me start by asking you to bring us. And by us, I kind of mean me up to speed about why this case is still here and where are we in it?
- [50:42]
Roger Parloff
Well, I think there are two answers. First, the case is still going in a. In a weird. In a weird posture. But even if it weren't, I think he would still. There's a lot of law that has been presented that says he would have jurisdiction still to finish up this criminal contempt issue. He had. He said he's not. He hasn't. He's not there yet in terms of finding criminal contempt. He's still at the fact finding stage. What had happened was, you know, this panel, which had two Trump appointees on it, had stated and then had two of each Trump appointee had voted to do a mandamus to stop his order that would have started this contempt process. But they had adopted different theories and completely different. They didn't adopt each other's theories. And one of them, Rao, her theory was that Boasberg had given the government an option of what to do. And one of those options was not permissible. So even Xi said he could proceed on the other option, which was to demand that the government say who. Who ordered who. Who was responsible for the fact that the planes didn't turn around that he could continue. So you had two of the three that went up and so a lot of time was lost and Raheering was denied but in effect he could still proceed. And so we're back where we were on about April 17 or sometime in April when he entered this order and finally he can proceed. And he said he's he definitely he was very eager to hear from like Erez, he wants to take testimony. Erez Ruvaney, he wants to hear from Drew Ensign, the DOJ lawyer that was in that hearing on March 15 and and then sort of go from there. The government was saying it was Tiberius Davis for the government was saying that he doesn't have jurisdiction. He was I think his theory is that this should be a habe that that he doesn't have habeas jurisdiction and it can only go proceed as a habeas. And so I don't know if he'll try another mandamus. I mean I think Boasburg's attitude was that that train had left the station and a majority of the it's complicated. It was a splinter but the court of appeals is letting him go forward and I think that's supposed to start December 1st. But I was, I have to admit, multitasking and I'm not too good at single tasking.
- [54:00]
Benjamin Wittes
So also December is so long from now.
- [54:04]
Roger Parloff
So I think that's on Monday. This Monday they're going to he has invited briefs about how to proceed and if the government wants to submit a declarations explaining how everything happened and obviating the need for a hearing, fine. I sort of think that's not going to happen.
- [54:24]
Benjamin Wittes
All right, let us wrap with one final question, Molly, which is in this wild and woolly week of one hearing briefing ruling after another. What are you looking forward to next?
- [54:44]
Molly Roberts
Looking forward to. I'll be in I'll be in Greenbelt, Maryland on Friday for the status conference in the John Bolton case and I will be in Norfolk, Virginia on December 5th for Letitia James own selective and vindictive prosecution motion.
- [55:01]
Benjamin Wittes
So it's like you have a collection of those going.
- [55:04]
Molly Roberts
Exactly. It will be interesting to compare and contrast. And then I believe that there are that there's another Comey hearing coming up on December 9th. That's another motion hearing on some of the issues that you mentioned earlier. But Roger and Anna can expand on that.
- [55:19]
Benjamin Wittes
Anna, what are you looking forward to next?
- [55:24]
Anna Bauer
Well, I think there's a 5pm deadline in nine minutes in the Comey case. I don't know though, if they have to be filed on the public docket. Roger, do you know these objections that they're. I assume that they will be, but it's. This relates to the magistrate, the appeal of this order to try over three minutes.
- [55:50]
Roger Parloff
Oh, yeah, that's right. The government.
- [55:52]
Anna Bauer
Nine minutes. The government is supposed to submit its objections. So that is in the immediate, short term, other things.
- [56:04]
Benjamin Wittes
I mean, the government and Comey's response to that is due on, on Friday and that's going to move lightning fast.
- [56:13]
Roger Parloff
Yeah.
- [56:14]
Anna Bauer
Yeah. So we also have coming up. I don't know if this is going to happen. I'm not entirely convinced I will see. But there's supposed to be a selective or vindictive prosecution evidentiary hearing in Abrego Garcia in Nashville starting on December 9th.
- [56:36]
Molly Roberts
And.
- [56:39]
Anna Bauer
Todd Blanche potentially could testify. It seems clear that if it comes to it, I kind of wonder if the government is going to suddenly agree to send Abrego Garcia to Costa Rica, conveniently. We'll see.
- [57:05]
Benjamin Wittes
But, but Costa Rica is a great country.
- [57:08]
Molly Roberts
Yeah.
- [57:09]
Benjamin Wittes
And it's a solution to a lot of people's problems right now. And I think that's very likely. Roger, what is your sights on next?
- [57:22]
Roger Parloff
Well, I think there's an Abrego Garcia civil hearing tomorrow in Greenbelt. So I think Anna and I are going to that that's at 11:30 maybe. And then just I think all of these, these written things pouring in.
- [57:42]
Benjamin Wittes
Yeah, we. So as you can hear, we have a lot of hearings coming up. We've got obviously we will be back on Friday, if not earlier, for regular lawfare Live. But on keep your eye on these channels, whatever channel you you listen to us on or watch us on for announcements of supplemental ones, which we will do whenever they seem necessary. This podcast is part of lawfare's livestream series, Lawfare Live. The now you can subscribe to Lawfare's YouTube or Substack to receive an alert the next time we go live on short notice. Our audio engineer for this episode was, as always, the estimable Anna Hickey of Lawfare. And as always, as well, thank you for listening. So good, so good, so good.
- [58:45]
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Roger Parloff
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Molly Roberts
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Anna Bauer
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