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Trump Wants $230 Million & James Comey's Defense · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 2: The usual question that the judge would ask is which
0:13
Speaker 2: what who is this person? What actual position are they surveying?
0:19
Speaker 3: The Trump administration has given Alina Habba a string of
0:23
Speaker 3: job titles. She's been Interim US Attorney, acting US Attorney,
0:28
Speaker 3: the first Assistant US Attorney, and special Attorney, all in
0:33
Speaker 3: an effort to keep Habba, Trump's former personal lawyer in
0:37
Speaker 3: the role of New Jersey's top federal prosecutor. And during
0:41
Speaker 3: oral arguments at the Third Circuit challenging her appointment, Appellate
0:46
Speaker 3: Judge d. Brook Smith questioned the unprecedented maneuvering by the administration.
0:52
Speaker 2: Would you concede that the sequence of events here and
0:57
Speaker 2: for me, they're unusual.
1:00
Speaker 4: Cite them if you wanted to take the time.
1:02
Speaker 2: Would you conceide that there are serious constitutional implications to
1:09
Speaker 2: your theory here? The government's theory, which really is a
1:13
Speaker 2: complete circumvention, it seems, of the appointments clause.
1:18
Speaker 3: A federal judge has already found that the appointment of
1:21
Speaker 3: Habba was done with a quote novel series of legal
1:25
Speaker 3: and personnel moves, and that she was not lawfully serving
1:28
Speaker 3: as US attorney for New Jersey. The appellate judges seem
1:32
Speaker 3: skeptical of the claim by Attorney General Pam Bondi's counselor
1:37
Speaker 3: Henry Whittaker that Habba's designation was consistent with long standing
1:42
Speaker 3: practices of the Justice Department, and Judge D. Michael Smith
1:47
Speaker 3: pressed Whittaker to provide examples of similar US attorney appointments,
1:52
Speaker 3: which he couldn't do.
1:54
Speaker 2: And told us numerous times how common practice has played
1:59
Speaker 2: into this.
2:00
Speaker 4: And I don't care.
2:01
Speaker 5: About dates, I don't care about names. Can you come
2:05
Speaker 5: up with an example of any time that such a
2:09
Speaker 5: concatenation of events has occurred with respect to the appointment
2:15
Speaker 5: of a United States Attorney?
2:17
Speaker 1: Well, I guess I cannot, But I guess I would
2:20
Speaker 1: say that what that series of precise and precisely timed
2:24
Speaker 1: events is not in substance from what the Executive Branch
2:28
Speaker 1: has done in other contexts and analogous contexts.
2:32
Speaker 3: My guest is constitutional law expert Harold Krent, a professor
2:36
Speaker 3: at the Chicago Kent College of Law. So how several
2:40
Speaker 3: people charged with federal crimes in New Jersey are challenging
2:44
Speaker 3: Hobba's authority to lead the US Attorney's office there tell
2:49
Speaker 3: us about the arguments they're making at the appellate court.
2:53
Speaker 4: Well, would it take us apack?
2:54
Speaker 6: I mean, the appointment's clause provides that the President must
2:57
Speaker 6: appoint all superior officers United States to consent by the Senate.
3:01
Speaker 6: So the question here is that how we know as
3:04
Speaker 6: a superit officer. She's a US attorney that's been decided
3:07
Speaker 6: before a supait officer. So the President importantly gets to
3:11
Speaker 6: fill that position, but there must be Senate consent, and
3:14
Speaker 6: for whatever reason, the President has tried to circumvent the
3:17
Speaker 6: Senate's power to give consent to Haba's position.
3:21
Speaker 4: So that's the legal structure. What's happened along the way
3:25
Speaker 4: is convoluted.
3:27
Speaker 6: But there is another statute called the Vacancy's Act, which
3:31
Speaker 6: says that the President can appoint certain individuals for a
3:34
Speaker 6: limited a period of time if the position is vacant,
3:38
Speaker 6: and thereby can get rid of the Senate consent requirement
3:43
Speaker 6: just for that to fill the vacancy until there's time
3:45
Speaker 6: he can make a decision and decide who should fill
3:48
Speaker 6: that post. So he did appoint Haba in that direction.
3:51
Speaker 6: The time period elapsed and under this congressional statute, the
3:56
Speaker 6: first assistant, who was like a career officer, is then
3:59
Speaker 6: to fill that position again, only until the president decides
4:03
Speaker 6: who he wants to fill that office, subject again to
4:06
Speaker 6: Senate consent. And so the first assistant under the statute
4:12
Speaker 6: took over office after Hobba's time period was over. But
4:15
Speaker 6: then she was fired, and she was fired because then
4:18
Speaker 6: President Trump wanted to put Hobba in as the vacant
4:22
Speaker 6: first assistant so she could continue her tenure and continue
4:26
Speaker 6: to avoid.
4:27
Speaker 4: The need for Senate consent.
4:30
Speaker 6: So the president here has snubbed his nose at the
4:33
Speaker 6: Senate continuously. He's done an end run around the appointment's clause.
4:38
Speaker 6: And so that's the situation we're in. That's not being
4:40
Speaker 6: challenged by several criminal defendants who are now appearing in
4:44
Speaker 6: that jurisdiction.
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Speaker 3: One of the judges, d brook Smith, called it a
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Speaker 3: concaatenation of events. The government's attorney said this was consistent
4:53
Speaker 3: with the long standing practice of the Justice Department, but
4:57
Speaker 3: he couldn't point but he couldn't point any similar situations.
5:02
Speaker 6: I mean, what the government can argue, they really have
5:05
Speaker 6: very limited arguments, is that each step along the way
5:09
Speaker 6: may have some kind of precedence, right, They're clearly a
5:12
Speaker 6: first assistant can fill the position until the president appoints
5:17
Speaker 6: a replacement. But there's never been a situation before where
5:20
Speaker 6: they fired the first assistant so that they could put
5:23
Speaker 6: in the person who previously had the position in so
5:28
Speaker 6: that they can continue being in an acting position without
5:30
Speaker 6: the necessity of senatorial consent. So clearly this is like
5:34
Speaker 6: taking little steps, and the Justice Department has admit this
5:37
Speaker 6: is circumventing the Senate's consent authority, and so the court
5:42
Speaker 6: is then left with the question of, like, okay, each
5:45
Speaker 6: little step along the way maybe has some kind of
5:48
Speaker 6: antecedents or historical practice, But anybody looking at this could
5:53
Speaker 6: say the president is trying to stemy the Senate's important
5:57
Speaker 6: role under Article to the Constitution.
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Speaker 3: Also, at one point, federal judges in New Jersey declined
6:04
Speaker 3: to keep her as the top prosecutor.
6:07
Speaker 6: An alternative mechanism which allows judges to appoint interim us attorneys.
6:14
Speaker 6: So there's like two different routes, you know. One is
6:17
Speaker 6: sort of through the first assistant that we talked about before.
6:20
Speaker 6: Another is make me triggered that the court say, oh,
6:22
Speaker 6: there's a vacancy here, we have to do this.
6:26
Speaker 4: The court rejected.
6:27
Speaker 6: Abba as being not competent enough, not experienced enough, and
6:32
Speaker 6: so that just again heightens the fact that this is
6:35
Speaker 6: a showdown that Trump is insisting on, you know, not
6:39
Speaker 6: getting many favors, but so far he's been able to
6:42
Speaker 6: keep Ajaba in position.
6:45
Speaker 3: One of the judges repeatedly suggested that one of the
6:49
Speaker 3: key laws at issue in the case suggested that Congress
6:53
Speaker 3: wanted unconfirmed acting top prosecutors to be career prosecutors rather
6:59
Speaker 3: than political picks.
7:01
Speaker 6: Yeah, so the idea of a first assistant being able
7:04
Speaker 6: to take over it temporarily, not for permanence, but is
7:07
Speaker 6: the idea that you want to have someone with knowledge
7:10
Speaker 6: and experience to fill that position as a temporary head
7:14
Speaker 6: of the vacant office.
7:16
Speaker 4: And obviously, by firing.
7:18
Speaker 6: The first assistant and then naming Haaba as first assistant,
7:23
Speaker 6: the Trump administration was under cutting the congressional goal of
7:27
Speaker 6: having somebody experienced to act as an officer until the
7:31
Speaker 6: president can get a confirmation from Senate. I wouldn't take
7:34
Speaker 6: that argument too far because I think President Trump can
7:37
Speaker 6: appoint someone who is incompetent into that office and then
7:42
Speaker 6: just have the question of whether the Senate is going
7:44
Speaker 6: to consent or not, so that I think is not
7:48
Speaker 6: a bar to the President appointing Kabba.
7:51
Speaker 4: But nonetheless, the idea of.
7:52
Speaker 6: The first Assistant is to ensure that someone with experience
7:56
Speaker 6: and perspective take over the position on a temporary base,
8:00
Speaker 6: and that couldn't happen because of the intervention of the
8:03
Speaker 6: Trump administration.
8:04
Speaker 3: The Trump administration had a fallback position that, regardless of
8:09
Speaker 3: other statutes Pam Bondi, the US Attorney General could delegate
8:14
Speaker 3: powers of a Senate confirmed US Attorney to Harbor for
8:18
Speaker 3: a period of time.
8:20
Speaker 6: Fallback has never been tested to my knowledge, and it
8:23
Speaker 6: seems again like a circumvention of the Vacancy Act. Congress
8:27
Speaker 6: has been very clear what should happen if there's a vacancy,
8:31
Speaker 6: and I agree that there is ability of officers in
8:35
Speaker 6: the administration Trump administration to delegate their own duties. But
8:39
Speaker 6: this is not body's own duties. This is duties that
8:42
Speaker 6: are subscribed to a US attorney and that Congress is
8:47
Speaker 6: set up by creating office of US Attorney. So I
8:49
Speaker 6: don't think the fallback is actually going to work here
8:52
Speaker 6: at all. And in face of the clear steps that
8:55
Speaker 6: I mean, the convoluted steps, but the steps that Congress
8:57
Speaker 6: has set out in the Vacancy's Act. You know, I
9:00
Speaker 6: think that the Trump administration is going to have a
9:02
Speaker 6: hard time persuading the Court that what it did here
9:05
Speaker 6: with Habba's nomination and then renomination is a bit of
9:10
Speaker 6: pass muster.
9:11
Speaker 3: I mean, if you take it from what happened in
9:13
Speaker 3: the oral arguments, it seemed like the judges were questioning
9:17
Speaker 3: the government's move. One judge called it a complete circumvention,
9:21
Speaker 3: it seems of the appointment's clause. So assuming that the
9:25
Speaker 3: Third Circuit says her appointment was not lawful, the Trump
9:29
Speaker 3: administration will take it to the Supreme Court. Is there
9:32
Speaker 3: any indication what the Supreme Court would do have they
9:36
Speaker 3: handled anything like this?
9:38
Speaker 6: The Vacancy's Act I've always found to be very convoluted.
9:41
Speaker 6: It is, and you know, I think the Court will
9:44
Speaker 6: not be fond of dealing with the intricacies of the
9:47
Speaker 6: Vacancies Act either.
9:49
Speaker 4: You know. The whole thing is this is just a I.
9:51
Speaker 6: Hate to use the expression it's a trumped up legal issue,
9:55
Speaker 6: because all the Trump has to do is a pointer
9:58
Speaker 6: and let the chips fall where And that's what's supposed
10:01
Speaker 6: to happen under the Constitution. So I think that the
10:03
Speaker 6: Supreme Court would be somewhat reticent to take the case
10:06
Speaker 6: in somewhat resistance.
10:08
Speaker 4: Simply because of the fact that the.
10:11
Speaker 6: Options for President Trump to cure this is just the pointer,
10:14
Speaker 6: and his refusal to do this is causing this legal morass.
10:18
Speaker 3: Can he a pointer if the New Jersey senators refuse
10:21
Speaker 3: to give a blue slip?
10:24
Speaker 4: I think he can.
10:24
Speaker 6: I think that's that's kind of a senatorial privilege, but
10:28
Speaker 6: it's not in the Constitution. And so I think that
10:30
Speaker 6: the President will be on strong ground and saying yes,
10:33
Speaker 6: there's a long cherish, if you will, tradition of having
10:37
Speaker 6: the senators agree on appointment, but that's not in the Constitution.
10:41
Speaker 6: And so I think if President Trump said, tradition, you know,
10:45
Speaker 6: be done, I'm going to appoint how but personally, I
10:49
Speaker 6: think he could probably do it.
10:51
Speaker 3: The Habba case isn't an isolated incident. A judge in
10:56
Speaker 3: Nevada last month ruled that Nevada's acting us to turn
11:00
Speaker 3: was unlawfully installed to her role, and we have FBI
11:04
Speaker 3: Director James Comy filing motions to dismiss the charges brought
11:08
Speaker 3: against him by Lindsay Halligan. Is the Trump administration putting
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Speaker 3: all the cases that are being brought or litigated during
11:18
Speaker 3: these terms in jeopardy with you continuing to hold on
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Speaker 3: to these temporary acting interim US attorneys?
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Speaker 6: Absolutely, I mean, I think the Trump administration is acting
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Speaker 6: needlessly and heedlessly because they could accomplish its goals more
11:35
Speaker 6: directly by ensuring that the set of go back into session,
11:39
Speaker 6: which has its own problems, I understand, but just making
11:43
Speaker 6: appointments and getting senatorial consent, which is clearly the constitutional
11:47
Speaker 6: designed methodology. So they're creating a host of headaches for
11:51
Speaker 6: appelled courts and then later for the Supreme Court, and
11:54
Speaker 6: they're jeopardizing some of their goals in terms of prosecution
11:57
Speaker 6: of Comy and others.
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Speaker 3: Coming up next on the Boomberg Lawn Show, I'll continue
12:01
Speaker 3: this conversation with Professor Harrold Krant of the Chicago Kent
12:05
Speaker 3: College of Law. We'll tell you about Trump's ask of
12:09
Speaker 3: two hundred thirty million dollars for compensation for past investigations
12:14
Speaker 3: of him by the Justice Department.
12:17
Speaker 4: Well, yeah, they probably will be a lot of money.
12:19
Speaker 2: But if I get money from archety, I'll do something
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Speaker 2: nice with it, like give it to charity or give
12:25
Speaker 2: it to the White House where we restore the White House.
12:28
Speaker 3: I'm June Grosso. When you're listening to Bloomberg. Hew, let's
12:31
Speaker 3: turn to another legal issue involving President Trump. He's suing
12:36
Speaker 3: his own Justice Department for two hundred thirty million dollars
12:40
Speaker 3: in compensation related to the investigations into whether his campaign
12:46
Speaker 3: colluded with Russia in connection with the twenty sixteen election
12:51
Speaker 3: and his post presidential retention of classified documents. The New
12:56
Speaker 3: York Times first reported that, but Trump has basically confirmed
13:01
Speaker 3: it with comments in the Oval office.
13:04
Speaker 2: We have numerous cases having to do with the fraud
13:08
Speaker 2: of the election, the twenty twenty election, and because of
13:11
Speaker 2: everything that we found out, I guess they owe.
13:14
Speaker 4: Me a lot of money.
13:15
Speaker 3: This is yet another time when I'm going to use
13:17
Speaker 3: the word unprecedented.
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Speaker 6: So this is the most on the one hand, amazing
13:23
Speaker 6: hutzba or hubris than any of us have seen. Because
13:26
Speaker 6: what the President is saying is because the former administration
13:30
Speaker 6: investigated my actions with the class of our documents, investigated
13:34
Speaker 6: my role in the Russia supposed to influence of the
13:38
Speaker 6: twenty sixteen election, that they've committed torts. They've committed torts
13:43
Speaker 6: against me violated by privacy rights, malicious prosecution, and therefore,
13:48
Speaker 6: because of those torts, I can recover under the Federal
13:50
Speaker 6: Tort Claims Act. Federal Tort Claims Act is a government's
13:53
Speaker 6: waiver of immunity from tortsuit in particularly defined circumstances, and
14:00
Speaker 6: the Pedaltory Claims Act. Before you can sue in court
14:03
Speaker 6: for a tourt, you can file an administrative claim before
14:07
Speaker 6: the agency that one asserts cause the individual harm. So
14:11
Speaker 6: what this is is an administrative claim preparatory to a
14:15
Speaker 6: potential Pederaltory Claims Act lawsuit saying that I was injured
14:19
Speaker 6: by torts through this investigation in both these two contexts.
14:24
Speaker 6: And why this is so unbelievable is then it's the
14:28
Speaker 6: Justice Department that gets to decide whether to pay the
14:32
Speaker 6: claims or not, so that people he can fire his
14:34
Speaker 6: own former personal attorneys then will sit on this issue
14:38
Speaker 6: about whether he deserves compensation. So there's no court review,
14:42
Speaker 6: there's no public review. This is insider. It's like opening
14:46
Speaker 6: up the treasury. Let me scoop out as much as
14:48
Speaker 6: I want to help out my family.
14:51
Speaker 4: That's what this is in essence, and it's just outrageous.
14:54
Speaker 6: But let me also say that what's amazing about this
14:58
Speaker 6: that I'm sure the President hasn't considered is this is
15:01
Speaker 6: opening up the same process for those who've been injured
15:05
Speaker 6: by ice, because what people are saying is the only
15:08
Speaker 6: type of compensation allowed will be for people to go
15:12
Speaker 6: before the Federal Towart Claims Act and basically allege claims
15:17
Speaker 6: of brutality, false arrests, malicious prosecution, privacy rights invasions by
15:23
Speaker 6: ICE officers. And if I were defending those ICE officers,
15:28
Speaker 6: I would say, well, look, the President's done the same thing,
15:31
Speaker 6: almost the same theories. If the Presidence says we can
15:34
Speaker 6: use the Federal Tort Claims Act for his own purposes,
15:37
Speaker 6: then obviously people have been injured by ice officers should
15:40
Speaker 6: be able to use the mechanism despite the defenses and
15:43
Speaker 6: the Federal Tort Claims Act itself.
15:44
Speaker 3: Accord to the Justice Department manual, settlements of claims against
15:48
Speaker 3: the Department for more than four million dollars must be
15:51
Speaker 3: approved by the Deputy Attorney General or the Associate Attorney General.
15:55
Speaker 3: The Deputy Attorney General is Todd Bland, who represented Trump
16:00
Speaker 3: in his new York criminal case and in the mar
16:02
Speaker 3: Alago classified documents case, and the Associate Attorney General is
16:07
Speaker 3: Stanley Woodward, who represented Trump's valet and co defendant also
16:13
Speaker 3: in the Marra a Lago investigation. So the ethical issues
16:17
Speaker 3: are apparent. You don't have to be a lawyer to
16:20
Speaker 3: see them. But who's going to stop them?
16:25
Speaker 4: Not you or me?
16:27
Speaker 3: A Justice Department spokesperson said, in any circumstance, all officials
16:32
Speaker 3: at the Department of Justice follow the guidance of career
16:36
Speaker 3: ethics officials. However, Attorney General Pam Bondi fired the department's
16:42
Speaker 3: top official responsible for advising the Attorney General and the
16:47
Speaker 3: Deputy Attorney General on ethics issues in July, and there
16:52
Speaker 3: is no replacement.
16:54
Speaker 6: And of course the most recent appointment individual had to
16:58
Speaker 6: accuse himself because of antisemitic and anti black sentiments that
17:02
Speaker 6: he articulated. So yeah, we don't have a top ethics
17:05
Speaker 6: official anymore. There is just no break. There's no internal
17:08
Speaker 6: guardrail in this. It's a smart move on Trump, but
17:10
Speaker 6: it's a disgusting move because it just shows the problem
17:13
Speaker 6: of having no type of separation or independence. And so
17:18
Speaker 6: I don't know whether President Trump will go through with it,
17:21
Speaker 6: But he actually could scoop millions of dollars from the
17:24
Speaker 6: US Treasury and deposited his account based upon this administrative claim.
17:28
Speaker 3: And he knows what's going on because in the Oval
17:31
Speaker 3: office he said, I'm the one who makes the decision,
17:34
Speaker 3: and that.
17:36
Speaker 2: Decision would have to go thrust my desk, and it's
17:38
Speaker 2: awfully it's range to make a decision where I'm paying myself.
17:42
Speaker 3: The problem is will we know when this happens or
17:45
Speaker 3: is it all internally done within the Justice Department.
17:50
Speaker 6: The actual payment has to be in a record, okay,
17:53
Speaker 6: so there will be legally cognizable means to say whether
17:57
Speaker 6: or not this happened. But the deliberates don't have to
18:01
Speaker 6: be in public, so we're not going to get a
18:02
Speaker 6: sense of who said what there was that going to
18:04
Speaker 6: be like reefs before court. This is an internal decision
18:08
Speaker 6: by his deputy and associate as to whether.
18:12
Speaker 4: And how much to pay him.
18:14
Speaker 6: But we will know that taxpayer moneys will be allocated
18:17
Speaker 6: to his bank accounts. And who knew that being president
18:20
Speaker 6: would be so profitable? This is just another ingenious way
18:24
Speaker 6: that President Trump has bound to line his own potentially
18:28
Speaker 6: line his own pockets at the expense of the American taxpayer.
18:31
Speaker 3: Unprecedented. I'll say it again, unprecedented. Thanks so much, Hal
18:35
Speaker 3: for joining me. That's Professor Harold Krant other Chicago Kent
18:39
Speaker 3: College of Law. Former FBI director James Comy has moved
18:44
Speaker 3: to dismiss the Justice Department's indictment against him, arguing that
18:49
Speaker 3: he was a victim of vindictive prosecution by President Donald
18:53
Speaker 3: Trump and challenging the appointment of the prosecutor who brought
18:56
Speaker 3: the case. Comy's lawyers argue that the appointm and a
19:00
Speaker 3: former White House aide, Lindsay Halligan, to be interim US
19:04
Speaker 3: Attorney for the Eastern District of Virginia was unlawful and
19:08
Speaker 3: that the indictment is a nullity because no properly appointed
19:12
Speaker 3: Executive Branch officials sought and obtained it. Camy also argues
19:17
Speaker 3: that he was singled out and targeted for prosecution because
19:21
Speaker 3: he's been a vocal critic of Trump for years. My
19:24
Speaker 3: guest is Abby Smith, director of the Criminal Defense and
19:28
Speaker 3: Prisoner Advocacy Clinic at Georgetown Law. Abby tell us about
19:32
Speaker 3: his vindictive and selective prosecution motions.
19:37
Speaker 7: There are two ways to attack the charging decision of
19:41
Speaker 7: a prosecutor. But first it should be understood that prosecutors
19:45
Speaker 7: had enormous discretion and deciding who to charge and what
19:51
Speaker 7: to charge, even though as a matter of ethics, under
19:55
Speaker 7: the rules of professional conduct, prosecutors are supposed to refrain
19:59
Speaker 7: from prosecuting a charge where there is no probable cause,
20:05
Speaker 7: and prosecutors are supposed to charge crimes, not people. But
20:11
Speaker 7: Comy doesn't get to rely on a critique of the
20:17
Speaker 7: Department of Justice's ethics. He has to mount a constitutional
20:23
Speaker 7: attack on his charges, and there are two ways to
20:27
Speaker 7: do that. The first is by challenging the prosecution as selective.
20:33
Speaker 7: And people tend to use selective and vindictive together. They're
20:38
Speaker 7: actually two different things, and they rely on two different
20:43
Speaker 7: constitutional rights. Selective prosecutions prohibit prosecutors from prosecuting people based
20:54
Speaker 7: on an arbitrary classification. Usually selective and enforcement has to
21:00
Speaker 7: do with prosecutions based on race, or gender or ethnicity
21:05
Speaker 7: or something like that. But the Constitution also forbids, and
21:10
Speaker 7: this is as a matter of equal protection, a prosecution
21:14
Speaker 7: that is based on an arbitrary classification. So race, religion, gender, ethnicity,
21:21
Speaker 7: those are the typical bases for a claim of selective prosecution.
21:26
Speaker 7: But there's this other phrase called arbitrary classification, and I
21:30
Speaker 7: think that's where Jim Comey lives. Here's the problem. I mean,
21:35
Speaker 7: there are many problems with a selective enforcement claim. First
21:40
Speaker 7: of all, because no doubt his lawyers are mounting this
21:43
Speaker 7: claim in order to get the case dismissed. It's not
21:46
Speaker 7: at all clear that dismissal is necessarily the sanction. I
21:50
Speaker 7: mean it could be, and the stronger the claim, the
21:55
Speaker 7: more likely dismissal should happen. But the sanction is not
22:00
Speaker 7: a given and it's a pretty demanding process for the accused,
22:06
Speaker 7: and you know, often it's an unsuccessful challenge by the
22:11
Speaker 7: accused because in order to succeed under a selective prosecution claim,
22:19
Speaker 7: there needs to be a bunch of things that the defendant,
22:23
Speaker 7: mister Comy can prove first that he has been selected
22:29
Speaker 7: arbitrarily as a result of a you know, a particular
22:32
Speaker 7: classification for him. I don't know what that classification would
22:37
Speaker 7: be called. Mister Comy was the director of the FBI,
22:41
Speaker 7: and so he engaged in investigations that Donald Trump didn't like.
22:47
Speaker 7: I guess that would be his classification. So he has
22:51
Speaker 7: to show that that particular classification is not legitimate, and
22:58
Speaker 7: it's not an investigation or a prosecution with a legitimate
23:01
Speaker 7: law enforcement purpose. The other thing that the defendant has
23:05
Speaker 7: to do is show that other people who have done
23:08
Speaker 7: the same exact thing weren't prosecuted. So it's sort of
23:12
Speaker 7: twofold the prosecuting him for his arbitrary classification. Number one
23:19
Speaker 7: and number two, similarly situated people have not been prosecuted.
23:24
Speaker 4: Well.
23:24
Speaker 3: Comy is pointing to four former Trump cabinet officials who
23:28
Speaker 3: he says were spared prosecution despite similar allegations they lied
23:33
Speaker 3: to Congress. What about vindictive prosecution.
23:37
Speaker 7: So then there's vindictives. And these two things are different,
23:39
Speaker 7: and they're based on two different constitutional claims. So selective
23:43
Speaker 7: prosecution is an equal protection claim. Vindictive prosecution is a
23:49
Speaker 7: due process claim. And you know, a prosecutor initiates prosecution
23:55
Speaker 7: or increases charges in an already existing prosecution in retaliation
24:01
Speaker 7: generally for a defendant exercising some legal right. Like a
24:06
Speaker 7: typical case of vindictive prosecution would be in states that
24:11
Speaker 7: have a kind of two step Denovo process, where the
24:15
Speaker 7: very first trial is a bench trial, and then if
24:18
Speaker 7: a person is convicted at the bench trial, they can
24:21
Speaker 7: seek a jury trial. If the defendant was charged with
24:25
Speaker 7: misdemeanor assault at the bench trial, and as a result
24:28
Speaker 7: of the defendant asserting his right to a jury trial,
24:31
Speaker 7: the prosecution then decides to charge him with felony aggravated assault.
24:36
Speaker 7: That's the typical example of a vindictive prosecution. It needs
24:40
Speaker 7: to be retaliation for a specific action taken by the defendant.
24:45
Speaker 7: So for mister Comy, here's the thing. It feels vindictive.
24:51
Speaker 7: It feels that he is being prosecuted only because he
24:55
Speaker 7: is one of apparently many people who are now on
25:00
Speaker 7: can only be called Donald Trump's enemies list. Is there
25:03
Speaker 7: another reason for the prosecution aside from a vindictive one?
25:08
Speaker 7: Is the question for a vindictive prosecution, you know, is
25:11
Speaker 7: this a crime that needs to be prosecuted or is
25:16
Speaker 7: this so clearly retaliation? And you know, it's hard to
25:21
Speaker 7: figure out prosecutorial motive for a vindictive prosecution. I think
25:27
Speaker 7: the motive is much more a part of that claim.
25:30
Speaker 7: For selective prosecution, you're sort of looking at proof of
25:35
Speaker 7: kinds of crimes, people who are prosecuted, people who are not.
25:39
Speaker 7: Both things are really really hard. A typical example of
25:43
Speaker 7: selective prosecution challenges. We're kind of the crack cocaine, powder
25:48
Speaker 7: cocaine prosecutions and the sentencing for crack cocaine because it
25:53
Speaker 7: was so much more of a black person's crime than
25:56
Speaker 7: a white person's crime. But those challenges were not especially successful.
26:01
Speaker 7: This is really novel. It's what we would call them.
26:05
Speaker 7: The law suey generous. At least in my lifetime, and
26:09
Speaker 7: I've been practicing law for more than forty years. I
26:11
Speaker 7: can't think of an example that is at all analogous
26:16
Speaker 7: to the prosecution of James Comy. You know, it's not.
26:19
Speaker 7: The previous heads of the FBI were perfect human beings
26:24
Speaker 7: and acted, you know, with absolutely no motive other than
26:28
Speaker 7: law enforcement. Right, we all know a whole lot more
26:31
Speaker 7: about Jay Edgar Hoover than maybe we did at the time.
26:36
Speaker 7: But you know, I can't really come up with an
26:39
Speaker 7: example that feels at all like the Komy example. Nor
26:42
Speaker 7: can I come up with an example that feels like
26:44
Speaker 7: Letitia James.
26:46
Speaker 3: My question is too, so you're looking for the prosecutor's
26:49
Speaker 3: motive here. The motive is coming from the president, right, So,
26:56
Speaker 3: but can they attribute to the president's vindictiveness to the process.
27:00
Speaker 7: Okay, that's a great question. I think here you can
27:05
Speaker 7: because there's some data to support that the Attorney General
27:08
Speaker 7: the United States does Donald Trump's bidding period end of story.
27:14
Speaker 7: That you know, Pamela Bondi has offered zero resistance from
27:18
Speaker 7: what any of us can see. Now, of course we
27:22
Speaker 7: don't know what happens behind closed doors, but you know,
27:25
Speaker 7: when prosecutors are being fired for not doing the president's
27:30
Speaker 7: bidding and they're being fired by Pamela Bondi and then
27:34
Speaker 7: substituted with somebody who's willing to do the president's bidding,
27:37
Speaker 7: I think it's fair to say Pamela Bondi is the
27:40
Speaker 7: surrogate for Donald Trump. I mean, the reason that I
27:43
Speaker 7: can't come up with any you know, analogous behavior is,
27:47
Speaker 7: I mean, not in my lifetime and certainly not since
27:51
Speaker 7: Watergate has any president used the Department of Justice as
27:56
Speaker 7: his own law office. The Department of Justice has a
27:59
Speaker 7: law history of independence, and that was sharpened in the
28:05
Speaker 7: aftermath of Watergate. And so you know, it's very hard
28:10
Speaker 7: to come up with an example. You know, my free
28:12
Speaker 7: association would be to go back to John F. Kennedy.
28:15
Speaker 7: His brother was the Attorney General of the United States.
28:17
Speaker 7: His brother certainly had a beef with any number of people,
28:21
Speaker 7: including j Edgar Hoover, but there were no prosecutions that
28:25
Speaker 7: were clearly the result of an agenda that was based
28:30
Speaker 7: in animus. I don't think can you come.
28:32
Speaker 2: Up with no? I can't. No.
28:34
Speaker 3: One seems to have come up with a good example
28:37
Speaker 3: of this. What about his other claim that you know,
28:40
Speaker 3: Lindsay Halligan wasn't properly appointed to the role.
28:44
Speaker 7: I think those claims are really interesting, and they're happening,
28:47
Speaker 7: not just with Lindsay Helligan. I hate to be hopeful,
28:50
Speaker 7: but I feel somewhat hopeful about these kinds of pre
28:54
Speaker 7: trial motion being filed by people like James Tomey, James
29:00
Speaker 7: and so on. He's in front of Michael Knockmanoff. I
29:03
Speaker 7: could not be better casting for the defense. Michael Knockmanoff
29:07
Speaker 7: was the chief federal defender in the Eastern District of Virginia.
29:10
Speaker 7: He's a really smart and able guy and a courageous guy.
29:15
Speaker 7: The last time there was a government shutdown, it had
29:20
Speaker 7: a direct impact on all the federal public defender officers
29:22
Speaker 7: across the country, and Michael Knockmanoff played a leadership role.
29:26
Speaker 7: I mean, he's a really smart and able guy. And
29:29
Speaker 7: he's the kind of judge who will say, this has
29:31
Speaker 7: never happened before, but if arbitrary means anything, it lives
29:36
Speaker 7: in this case. You know, if there could be evidence
29:39
Speaker 7: of a vindictive prosecution, I think he's the kind of
29:43
Speaker 7: judge that would find it in this case. And I
29:45
Speaker 7: have to imagine too. You know, Comy's warriors are all
29:48
Speaker 7: about a former federal prosecutors, so very smart and able,
29:52
Speaker 7: and they will present a good case. They're not William Kuntler.
29:57
Speaker 7: I mean, they're going to present a very low thing case.
30:01
Speaker 3: And Comey's beefing up his defense team even more. He
30:04
Speaker 3: recently hired veteran appellate litigator Michael R. Dreeben, who was
30:09
Speaker 3: formerly the Justice Department's Deputy Solicitor General, as well as
30:13
Speaker 3: Rebecca Donalleski, a former chief of the Public Corruption Unit
30:18
Speaker 3: at the US Attorney's Office in Manhattan.
30:21
Speaker 7: Yes, he has. It's got to be incredibly costly. And
30:24
Speaker 7: you know what, it's scary. Once a person is being
30:27
Speaker 7: they're scared. They're like any other client of mine. It
30:31
Speaker 7: doesn't matter how powerful they are in the world. It's
30:34
Speaker 7: scary because somebody is threatening them with a prison sentence
30:38
Speaker 7: and forcing them to get canceled and forcing them to basically,
30:42
Speaker 7: you know, defend their reputation. So you know, it's a
30:45
Speaker 7: big deal. And that's the ethics are essential for prosecutors.
30:50
Speaker 7: You know, prosecutors have so much power. They're not supposed
30:52
Speaker 7: to wield it as if it's nothing ethical. Rules say
30:55
Speaker 7: in the very first content following the rules a prosecutor
30:59
Speaker 7: as a response ability of a Minister of Justice not
31:02
Speaker 7: simply that of an advocate. They're supposed to be restrained.
31:06
Speaker 7: They're supposed to care about procedural justice. But if this
31:09
Speaker 7: is not selective prosecution, and if this is not nvictive prosecution,
31:13
Speaker 7: I honestly don't know whatever would be what's the point
31:15
Speaker 7: of having those challenges? If this does not meet up
31:19
Speaker 7: with them.
31:20
Speaker 3: We'll have to see what the government's answer is to
31:22
Speaker 3: Comy's motion. Thanks so much, Abby. That's Abby Smith, director
31:26
Speaker 3: of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law.
31:31
Speaker 3: And that's it for this edition of the Bloomberg Law Show.
31:34
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