The Situation: Three Thoughts on the Comey Arraignment

The Situation on Tuesday just asked questions. 

Today, I read the transcript of James Comey’s arraignment—even as the world moved on to the next abuse.

I was not present for yesterday’s opening hearing in the Comey case, having been out of town. And while I was familiar with the press coverage of the arraignment, including the excellent coverage by Lawfare’s Anna Bower and Roger Parloff, I was keen to read the raw transcript itself to see what I could glean from the specific words spoken in court about the direction of the case. 

Today I got even further behind in my efforts to keep up with the Justice Department’s ongoing abuse of the criminal process and targeting of its political foes.

Barely had I finished reading the transcript than this afternoon brought an indictment of New York Attorney General Letitia James—a subject to which I will no doubt return after I have read the relevant documents. 

In the meantime, I have three observations about yesterday’s transcript, before The Situation shifts from Comey to James—and thence to whomever the next indictee might prove to be. 

The first is that there is a notable gap between prosecution and defense lawyers who showed up to yesterday’s hearing in what we might call pride of service. On the prosecution side, the U.S. Attorney’s Office for the Eastern District of Virginia could not find a single lawyer who had worked for the office prior to late September to stand up in court and say, “My name is X and I represent the United States.” 

Not one.

The acting U.S. attorney, of course, had been fired because he wouldn’t bring this case. And no career official from the office was at the prosecution table either. Instead, there were two assistant United States attorneys from North Carolina, whose familiarity with the case was so limited that they stressed they were only just starting to get their hands around it and its discovery. 

On the other side, by contrast, Comey’s lead defense counsel introduced himself as follows: “Your Honor. Pat Fitzgerald, and it's the honor of my life to represent Mr. Comey in this matter.”

This is a bit of an inversion of the normal understanding of the roles of criminal lawyers. Federal prosecutors typically feel a certain honor and pride in representing the United States in court—believing that their cases represent attempts to do justice. Defense counsel, by contrast, generally think of themselves as representing a check on the justice system’s coercive power in general. But they often don’t take particular pride in their specific individual representations as embodying justice—much less that representing a particular accused miscreant is the honor of their lives. There are exceptions, of course, but I’m not sure I’ve ever seen a case in which the prosecution was so evidently ashamed of its case and the defense so visibly proud to represent someone accused of a crime.

Fitzgerald is, of course, a smart lawyer, and he was—I assume—making this point intentionally. But the point is also undoubtedly sincere. And it works rhetorically because it is so intuitively right. Fitzgerald is a famed federal prosecutor—one who has prosecuted mobsters, politicians, and White House officials on behalf of the United States—saying that the singular honor of his entire career is representing a defendant against prosecution by the United States, even as the government is having trouble finding lawyers to show up in court on its behalf.

The second point is a related one, and it concerns preparation. There is something embarrassing about the government indicting a case and then showing up in court completely unprepared to litigate it. Yet in a brief hearing, the government did not merely put forward new lawyers from a different state who had clearly been assigned to the matter only a day or two earlier, these lawyers declared they had not yet discerned the scope of their discovery obligations, anticipated that there might be issues with respect to classified material but did not yet know the full scope of those issues, and asked for time to sort things out that are normally sorted out before a case is ever brought. 

“We’re just getting our hands around the discovery as well,” prosecutor Tyler Lemons said, as though the prosecution hadn’t had five years to figure out what documents it might need to produce if it brought this case.

The defense too, acknowledged that it was also unprepared—but for a very different reason.

Fitzgerald stated he still lacked the most basic information about what the indictment alleges Comey is supposed to have done. The people about whom Comey is alleged to have lied to Congress are still unnamed, he noted. “We haven't received a single piece of paper of discovery to date. We still haven’t been told who PERSON 3 and PERSON 1 are. We don’t know the nature of the charges . . . “ 

Despite his professed unpreparedness, Fitzgerald was able to sketch out a speedy briefing schedule, in which the defense will file its motions to dismiss for selective and vindictive prosecution and challenging the legality of the appointment of Lindsey Halligan in less than two weeks and then, while the government is responding to those, prepare a second tranche of motions to file in November: “We're a little less certain of precisely what motions [these] would be, but there might be a Bronston literal truth defense motion. There may be a grand jury abuse motion, outrageous government conduct motion, but those motions would be addressed to the indictment,” he said. 

It is fairly normal to see cases in which at arraignment the defense has not gotten its act together yet while the prosecution has its ducks neatly lined up. Indictments, after all, sometimes take defendants by surprise. Defendants don’t always have their legal teams set up yet. 

The opposite situation—-one in which the prosecution can’t even give a coherent account of its discovery process or a sense of the role classified material might play in the case, while the defense can lay out a roadmap to trial—I have never seen before. 

My third observation is that the reason for both of the first two points is the same and unsubtle: Because the government is behaving shamefully and proceeding with a rushed criminal case based on compound untruths, it neither has put itself in a position to behave responsibly—by having discovery ready and the like—nor does it have access to attorneys of the sort who know the case they have brought when it comes time to move it forward in court.

But expecting that sort of thing is apparently passé. Today the Eastern District of Virginia is already on to Letitia James for a crime she also didn’t commit.

And so The Situation continues tomorrow.