Lawfare Daily: The Justice Department as a Political Weapon

[Intro]

Kate Klonick: It is the Lawfare Podcast. I am Lawfare senior editor Kate Klonick with Lawfare Editor-in-Chief Benjamin Wittes, Senior Editor Anna Bower, and Professor of Practice in New York University and Lawfare Editor Bob Bauer. 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 at lawfare.substack.com.

In today's show, which was recorded Monday, September 29th, we discussed the basics of the James Comey indictment on September 25^th; 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 this case over the next few weeks. Again, if you like it, please join us for the next one by subscribing to our Substack, at lawfare.substack.com.

[Main episode]

Anna, do you wanna 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?

Anna Bower: 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 Erik Siebert resigned reportedly, in part because he refused to seek an indictment against James Comey and some of these other politic––politically motivated prosecutions involving Adam Schiff, Tish James. 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 two-count indictment, against Comey related to false statements and obstruction.

All of that relates to this September 30th, 2020 congressional testimony. And when the indictment came out, Kate, it was really unclear, exactly, what the alleged false statements were about in terms of the underlying factual basis.

We did know that at, at least on one count, Comey was alleged to have, have represented in that 2020 testimony 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, 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 it––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––or actually not just a little bit, a lot confused––about the underlying factual basis of this indictment. And at first people thought because of 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 exp––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 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 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 seemed, it seemed to be like––That, you know, it, 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 Richman, 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––he had relationships with reporters.

Again, there was an earlier investigation and, and in the documents related to that investigation, which was called Arctic Haze, there are statements that Richman makes in which he says things like, Comey never asked me to talk to the media. So we had these two competing, you know, 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 Richman 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 Richman matter, not to the McCabe matter.

Andy McCabe also told CNN, and then also on his own podcast with Allison Gill, that he has not been contacted or re-interviewed about this matter.

Kate Klonick: Which makes it less likely.

Anna Bower: Right. And then we also know that Dan Richman has, because there's reporting that he was re-interviewed.

So it seems that it's about the Richman thing. I'm sorry that was a long windup to getting to that, but it, unfortunately, with this indictment, everything's gets, has been 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––

Kate Klonick: –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, what a farce.

Anna Bower: Yeah, so, right, so we got an, a transcript of the event, right?

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 foreperson will go into court, hand up the indictment.

It's kind of, you know, sometimes it's under seal, so you don't know which indictment it is, because they're just using initials. But in this case, you know, they announced the indictment of James Comey in, 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.

You know, 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 gotta say, I think I only ever saw her actually in court like maybe two times. And she never made, she never had a speaking role in terms of actually arguing on behalf of Trump.

So it–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–

Kate Klonick: Like, two documents that her actual signature were on had conflicting 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.

I mean, it was just very embarrassing for her. I mean, that seems, that seems, yeah. Also not–yeah.

Anna Bower: So, so I think it's just a preview of like, if she is the one who's going to be the lead prosecutor on this case–especially, now, again, this is a last bit of information I will get to so we can move on.

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, or, and former pro–longtime prosecutor. He was the U.S. 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.

Kate Klonick: Yep. I think that that's––I think that 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 seem to be the theme coming out this weekend.

Which, speaking of, now, Bob and Ben, I'm going to kind of pivot to you guys. I, I'm really curious, like, what happens if this just utterly fails?

Like, we've got this indictment. What are the next steps? What is the timeline of this going forward if these––you know, we barely have a true bill here. Like, what is going to happen to, to this in the actual next couple of days and weeks, and how quickly can it go away? And what, I mean, how will the president deal with that?

Bob, you talked about this a little bit on Executive Functions today, your Substack with also Lawfare editor Jack Goldsmith.

Bob Bauer: Thank you very much and I, 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. 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 and revenge 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 sights, 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 onto 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 prosecutorial 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 TruthSocial.

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.

Benjamin Wittes: 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 Habba 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 was 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 the, 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. Second 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 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, 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 a trial.

Third possibility is that it, you know, for some reason it goes to trial. And then I, 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 Kelley are, you know, exceptional trial lawyers of, of the highest caliber.

And let's just say Lindsey Halligan is not. You know, nowhere does that become more visible––that stuff is visible in brief writing, but it's really visible when you have to–

Kate Klonick: –in-court appearances–

Benjamin Wittes: –do stuff live.

Kate Klonick: Oh, like, I mean, like it actually was––like this is worse than like the sign-in for my internet law class. I pass around a sheet and people have more ideas of like what they've done and what they haven't done than, like, this current attorney general. I mean, I think that that's exactly 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.

So 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.  

Benjamin Wittes: Right. So I, I guess 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 that.

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. This is a kind of––if you think about it as a fantasy of misconduct had by Robert Jackson and Antonin 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––has got to be a dramatic thing.

The second thing––but, 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, his close friend group is composed of people with whom he was AUSAs in the Southern District of New York, including both David Kelley 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, of the 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 gonna prosecute you if you stay in office.’ You have a certain vulnerability that Jim doesn't have. You also have, I mean, she's 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, you know, 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.

Kate Klonick: 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 exactly right.

Bob, I know you're very worried about also the Justice Department and how this kind of reco–how the Justice Department recovers from this type of moment, which is not about, like–which is kind of Ben's third point, but not as particularly. So I'm curious about your thoughts on that.

Bob Bauer: 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 advisors 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. And that wasn't the merits of the matter.

And then last thing I'll just say in response to your 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. 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, a 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.

Kate Klonick: Yeah. I mean, I completely agree with that. And as I watch in the last nine months, in the last five years, there has been a kind of a strategy shift back and forth from, you know, 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, you know, I think a lot of us go back and forth on 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 we get in, when like kind of, the left or whoever gets in charge, s there going to be a return? A push––in this Jimmy Carter sense is a wonderful example, like of a return to this type of norm setting and everything else.

Anna, I'm kind of just curious like how, what you think the timeline of how quickly this will crash and burn. As you're watching this happen and everything that, you know, and, and how that's actually proceeding in open court, what do you think the timeline is going to look like? What's our over-under, so to speak, of like when are we going to know if this is going to trial? Which would be, as Bob said, one type of particular catastrophe.

But, you know, on the other hand, a different, a different type of thing if this just kind of gets disappeared very quickly. That will kind of incite like a new level of kind of criticism from––a new level of criticism and then maybe a, like––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.

Anna Bower: Yeah. I mean, I think it depends on what some of the choices that are made by the defense team, as Ben kind of detailed a few minutes ago. 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 type of motion is one that basically asks the prosecution to kind of further detail the actual basis of 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––it really doesn't put the defendant on notice of like, what actually is the basis–

Kate Klonick: –what they're being charged with. Yeah.

Anna Bower: Well, like he, he knows what he's being charged for. But what is, you know, what is the actual substantive conduct that is being charged?

It's kind of just unclear. So we might see something to that, to that effect. But, you know, I will mention too that it's a while before Comey's first appearance. I believe it's October 9th. Is that right Ben? And––

Benjamin Wittes: Yes, the arraignment isn't until the ninth and I–

Kate Klonick: Okay, so we've got like a couple of weeks, so nothing’s going to happen till arraignment–

Benjamin Wittes: –I've never heard of an arraignment in an unsealed case that takes two weeks.

Kate Klonick: I was also wondering about that. That’s a long time.

Benjamin Wittes: 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.

Anna Bower: Yeah, that, that’s very odd––

Kate Klonick: I’m sure there’s atoning to do, but still not…

Anna Bower: That part is quite odd. And it struck both Ben and I as being weird that it is such a long runway between now and the arraignment.

I will say, there's some, like, rightwing chatter and it––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 may very well be that the government's going to seek a superseding indictment that will include, you 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 who is, you know, very close with people who are the top brass at the Justice Department, are making these kinds of statements about some kind of superseding indictment.

My understanding is that, you know, you would still have to meet the statute of limitations for any kind of, of the false statements-related charges because it's a five year statute of limitations. But, of course, if they're trying to bring some kind of conspiracy charge, they might have some 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 hard to get discovery 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 go– Oh, sorry. Go ahead Ben.

Benjamin Wittes: I was just gonna say, it's very hard, but you don't usually have a situation in which the president publicly calls for––

Anna Bower: Right, that's what I was gonna say.

Benjamin Wittes: ––action, 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.’

Anna Bower: And I mean, look, I––

Benjamin Wittes: It’s an example of a fact pattern.

Kate Klonick: I, 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––

Anna Bower: Well, let’s be clear, he reposted it, but just clarified––he, he posted it, deleted it, and then reposted a different version of it.

But all of which is to say that, you know, I spent 10 minutes over the weekend––I put a timer on, and I was like, I'm gonna 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, 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 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, oh yeah, it was the Comey gang, Fitzpatrick.

He gets the name wrong. It's Fitzgerald. But––and even though Comey had nothing to do with 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 seems like a winning motion.

But at the very least, it––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 it, it shouldn't be that complicated in terms––like, we don't have, like we did in Trump's classified documents case, CIPA 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 going to take years to go to trial at all.

It, it should be pretty quick.

Kate Klonick: Bob, do you agree with that? And what do you think is better for, kind of, the re––if we are going to reset norms, if there's ever gonna be kind of a retaking 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––I doubt that this will happen, but that this quietly slinks away and is dismissed for lack of, for––on other grounds?

Like, should Comey make this into a vindictive prosecution case? And is there, is there merit to that? Or should we or should we kind of be moving away from––you know, just trying to make this go away as soon as possible?

Bob Bauer: 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, you know, the adjudication of his guilt or innocence. It has significance in––as we've talked earlier––incentives and disincentives to executive 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, you know, delayed until October 9th. Except for October 9^th, I don't know what's gonna happen next and sort of what that's gonna mean for the schedule.

Superseding indictment, who knows. Donald Trump––in an Oval Office comment or series of comments, extended comments that he 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 require––you know, personal defense requirements, but that it speaks loudly and clearly to the fundamental principle that has been violated here.

I mean, this is the––we've got to start drawing that kind of line right now.

Benjamin Wittes: 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, 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 Pam Bondi have been like? Now they're gonna assert executive privilege––

Kate Klonick: Well, conveniently, we know. What they–

Benjamin Wittes: Well, we 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 am, you know, I, I've not––I'm––we are 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 this without the stain of ‘yeah, he may have gotten––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 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, tricky situation.

Anna Bower: I have a question. I, I'm 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, you know, detailed all the reasons why there––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 moved forward with the charges anyway.

I'm curious because I, I would imagine that in a vindictive prosecution motion, it seems like it's relevant that, you know, there was this assessment that there was no probable cause, but following, you know, these public statements by the president and, and installation of Lindsey Halligan, the fact she's apprised of it but moved forward anyway, that seems relevant at least to a, 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?

Benjamin Wittes: 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, 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.

Bob Bauer: I, 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 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.

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 meeting 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 expectation 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 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, 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.

Anna Bower: Yeah. Just one thing to add: we have 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.

Bob Bauer: It's amazing.

Benjamin Wittes: Can I ask, 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?

Kate Klonick: I mean, no.

And I also–like, I mean, it's, I mean there, there was mention of this in a lot of the coverage, but you saw even–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 Gonzales, which seems freaking quaint next to, like, what's happening 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 I just––this is like blowing my mind. And I, you know, I'm not even as deep in this as Bob and Ben and Anna, you are.

Bob Bauer: Well to me––and I'm sorry, did you want to step in here? I was going to say, to me, there 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 coverup of the Watergate break-in and associated criminal offenses.

Here is the extraordinary difference. Here, 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.

I mean, 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 and to 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 Truth 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, he seasons his anger, his expressed anger and desire for retribution with, with an occasional detour into rule of law and norm articulation. But that's not typically what he does.

And that marks this administration as unique in the history, in my view, certainly in the modern history of the presidential relationship 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.

Kate Klonick: 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, like, a short, under-45-minute hits on kind of, taking the stuff on.

But there was just so much that we delved into. And I actually kind of want to foreground––hopefully, Bob, you can 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 such a deep and interesting question of analysis. And so I would love to just talk about that a little more. And we didn't even get into, Ben, as you know, the presidential memo that has come down, the executive order that has come down on Antifa and kind of the––and politicized speech, and gatherings, and 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 it'll be The Day After The Day After. We can make a whole new podcast about it.

We're not gonna do that. 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 the saying. You know, we’re cursed to live in these interesting times at the Department of Justice.

Natalie Orpett: 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, lawfaremedia.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 at lawfaremedia.org.

The podcast is edited by Jen Patja 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.