The Lawfare Podcast Summary: Lawfare Live – Discussing the Hearings on James Comey’s Prosecution and the Alien Enemies Act

Date: November 19, 2025
Host: Benjamin Wittes
Guests: Roger Parloff, Molly Roberts, Anna Bauer (Lawfare Senior Editors)

Episode Overview

This episode of Lawfare Live is an in-depth panel discussion about recent and significant legal hearings related to the prosecution of James Comey—focusing in particular on motions alleging selective and vindictive prosecution—and the mechanics of the grand jury indictment. The episode also covers the related JGG (Alien Enemies Act) case before Judge Boasberg. The Lawfare team, including senior editors who attended the hearings, offers firsthand insights, analysis, and commentary about the legal challenges, judicial reactions, and unexpected developments, especially regarding alleged procedural irregularities in the Comey indictment.

Key Discussion Points and Insights

1. Comey Motion for Dismissal: Vindictive Prosecution

• Hearing Focus:

  • The principal focus was Comey’s motion to dismiss on the basis of vindictive prosecution, not selective prosecution (02:16).
  • The defense, led by Michael Dreeben, argued that the prosecution was politically motivated, stemming directly from former President Trump’s animus against Comey.

• Arguments Presented:

  • Vindictive prosecution requires evidence that charges are retaliatory for the exercise of a legal right (usually a constitutional right like free speech); in this case, the argument was tied to Comey’s First Amendment speech as criticism of Trump (09:06).
  • Dreeben underscored nearly a decade of Trump’s public statements displaying animus toward Comey, arguing these were wielded as a “cudgel” against dissent.

• Government’s Defense:

  • DOJ asserted that animus from the President cannot be attributed ("imputed") to the prosecutor who actually brought the case—Lindsey Halligan—unless clear evidence demonstrates a lack of independent prosecutorial decision making (04:06).
  • The government maintained that the grand jury independently decided to indict, and this should “break the causal chain” of direct political retaliation.

• Judicial Reaction:

  • Judge Nachmanoff expressed skepticism about the government’s independence narrative, particularly grilling the prosecution on how Trump’s public statements could be squared with the Justice Department’s duty to avoid even the appearance of a prosecution not based on evidence (12:27, 14:05).
  • The judge repeatedly cited a Trump quote: “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 ... we have to do it now.” (12:27)

Notable Quotes

• Dreeben on Trump’s Motive:
  • “He's trying to use the threat of depriving Comey of liberty as a cudgel … to get him to stop expressing dissent.” (10:13)
• Judge Nachmanoff on Trump’s Statement:
  • “He kept reading this statement back... pressing the government on how do you square that with ... DOJ policy ... you’re not supposed to bring an indictment when you don’t have a belief in whether they’re guilty.” (14:05 – paraphrased by Anna Bauer)
• Tyler Lemons (DOJ), on prosecution and animus:
  • “I don't like a lot of people I prosecute. I don't like child rapists. … 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.” (19:24)

2. Procedural Crisis: Issues with the Grand Jury Indictment

• The Surprise Turn:

  • The session unexpectedly shifted to discuss whether the very indictment against Comey was valid—an issue stemming from irregularities in grand jury procedure (24:01).

• Mechanics of the Problem:

  • Halligan presented a three-count indictment, but the grand jury only “true-billed” two counts, and issued a “no bill” on the first.
  • Instead of formally re-presenting the revised two-count indictment to the grand jury for another vote, Halligan’s team simply had the foreperson sign it, bypassing a full grand jury vote (27:00).
  • Judge Nachmanoff was visibly concerned by this, referencing D.C. Circuit precedent (Gaither), which flatly requires that changes to indictments be resubmitted to the grand jury.

• Ramifications:

  • Dreeben responded: “Your Honor, there is no indictment in this case if what the government is saying is what I think it’s saying. … That would be a complete bar to further prosecution.” (31:58)
  • The question now includes not only vindictiveness but also whether Comey was ever lawfully indicted.

• Lindsey Halligan’s Unusual Court Appearance:

  • Halligan stepped up personally for the first time in the case, presenting a combative and defensive stance, and even interrupting or pushing back at Judge Nachmanoff (38:11).
  • The judge and panel noted her tone: “It was not the way I would speak to a judge. It sounded surly and defensive” (38:46; Roger Parloff).

3. Declination Memo and DOJ Transparency

• Existence of a Memo:
  • The government avoided directly answering whether a “declination memo” (internal DOJ document recommending not to prosecute) existed in Comey’s case, invoking deliberative-process privilege per Deputy Attorney General’s instruction (07:37, 42:11).
  • The judge and Dreeben found this both highly unusual and potentially significant—suggesting internal controversy over prosecuting Comey.

4. Procedural Crisis in the JGG (Alien Enemies Act) Case

• Judge Boasberg’s Contempt Inquiry:
  • Parallel to Comey’s case, the team discussed Judge Boasberg's efforts to pursue contempt proceedings against the government after it ignored orders regarding deportation flights.
  • Post-appellate wrangling has left jurisdiction in question, but Judge Boasberg is pressing ahead with fact-finding and testimony (50:41).

5. Strategy, Legal Stakes, and Upcoming Hearings

• Defense Strategy:

  • The presence of Michael Dreeben, a top appellate lawyer, as lead for Comey is interpreted as a sign the defense expects to win and anticipates an appeal to higher courts (41:54).
  • The defense has multiple grounds for dismissal available—vindictive prosecution, irregular grand jury procedure, constitutional appointment of prosecutors, and more (44:57).

• Judicial Coordination:

  • Judge Nachmanoff is considering whether to rule on all motions together (“consolidated ruling”) and how to sequence decisions to avoid mootness if one ground preempts others (46:28).

• What’s Next:

  • The Lawfare panel is closely watching upcoming filings (objections to the magistrate’s order, status conferences in related cases) and additional hearings in December (54:43–57:41).

Notable Quotes & Memorable Moments with Timestamps

• On Vindictive Prosecution:
  “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.” — Molly Roberts (10:13)

• On Halligan’s Role:
  "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...I'm not going to characterize my colleague, but she did do what President Trump wanted her to do." — Roger Parloff (05:43)

• About the Grand Jury Crisis:
  "There is no indictment in this case if what the government is saying is what I think it's saying. … That would be a complete bar to further prosecution." — Michael Dreeben, paraphrased by Anna Bauer (31:58)

• On Halligan’s Courtroom Demeanor:
  “It was not the way I would speak to a judge. It sounded surly and defensive.” — Roger Parloff (38:46)

• On the Government’s Problems:
  "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... And they've got this other question of outrageous government conduct..." — Benjamin Wittes (44:57)

Important Segments (Timestamps)

• [00:48]–[01:44] — Introduction, panel participants
• [01:44]–[09:06] — Overview of Comey’s motion and the focus on vindictive prosecution
• [09:06]–[14:05] — Deep dive on standards, evidence, and judicial signals
• [14:05]–[19:41] — Debate over government’s concession on retaliation, unusual government arguments
• [24:01]–[38:46] — Crisis over grand jury indictment procedure; Halligan’s intervention
• [41:54]–[44:57] — Strategic implications of defense counsel and prosecution pitfalls
• [50:41]–[54:23] — Update on the JGG (Alien Enemies Act) contempt proceedings before Judge Boasberg
• [54:43]–[57:41] — What’s next: upcoming hearings and filings

Takeaways

• Extraordinary Irregularities: The Comey prosecution faces not only claims of political motivation but the possibility that he was never properly indicted—a procedural crisis that could end the case irrespective of motive.
• Judicial Skepticism: The judge seems openly doubtful about government justifications, particularly on prosecutorial independence and transparency.
• Unprecedented Transparency Issues: The government’s refusal to confirm the existence of exculpatory internal DOJ documents (declination memo) raises red flags even among seasoned observers.
• High Legal Stakes: Both the conduct and outcome of these hearings could have major implications for prosecutorial integrity, separation of powers, and precedent in high-profile government cases.

Summary prepared for those who want a thorough, accessible, and structured guide to this consequential Lawfare Live episode.