This dialog was recorded on Thursday earlier than the indictment of New York Attorney General Letitia James.
‘On Wednesday, James Comey was arraigned in a Northern Virginia courthouse. The former FBI director entered a not-responsible plea after his indictment on one depend of creating a false assertion to Congress and one depend obstructing a congressional continuing. Our Katelyn Polantz was exterior the courthouse.
The plan for the protection is to problem each manner they’ll how this prosecution has been introduced, how the indictment was introduced, and the work of Lindsay Halligan, the U.S. Attorney. They’re additionally going to problem the case on a pair different grounds, vindictive and selective prosecution. They’re going to allege grand jury abuse. They’re going to allege outrageous authorities conduct. The prosecutors, the Justice Department, they are not prepared. But the decide made clear that he does not assume that is difficult and this could transfer very quick. January fifth is the trial date, lower than three months from right this moment.
The journey to this extraordinary second was suffering from controversy, and the stakes couldn’t be greater for the very bedrock of American justice. That’s why I known as up Elie Honig. He’s a senior authorized analyst right here at NCS and a former federal and state prosecutor. He additionally has a brand new e-book out, When You Come on the King, Inside DOJ’s Pursuit of the President, from Nixon to Trump. I’m David Chalian, NCS’s Washington Bureau Chief and Political Director, and that is the NCS Political Briefing.
Elie Honig, thanks a lot for becoming a member of me. Appreciate it.
It’s a terrific second to speak to you, David.
When you see Donald Trump direct his legal professional basic to prosecute a former FBI director that he has made clear is a political enemy, he considers, of his. And that’s precisely what occurs. The Department of Justice, it strikes via, will get a grand jury to indict, and now we see Jim Comey, a former FBI director, in courtroom pleading not responsible. When you see that every one collectively, what goes via your thoughts?
You hit on the precise motive why that is such a giant deal and totally different, basically totally different from something we have seen earlier than. And I do, , a historic overview of this in the e-book, which I do know we’ll speak about in a minute. But there’s two the explanation why this has such an enormous story. The decrease vital motive is due to Jim Comey and who he’s and that he was this distinguished federal prosecutor and excessive profile FBI director and has been concerned in, and I feel not performed himself in the easiest way in among the greatest tales of the final 10, 12 years, notably his mishandling of the 2016 investigation of Hillary Clinton’s e-mail. But it is Jim Comey, he is an enormous title, former FBI director, now sitting on the defendant’s desk. But that is the B storyline. The A storyline, David, is what you mentioned. This is the primary time, I’m sure of it, I’ve finished the historical past right here, that we have ever seen a president explicitly and publicly ordering, instructing his justice division, prosecute this individual. And the rationale Donald Trump barely tries to cover this, in reality, he even celebrates it, is as a result of that is a man who’s crossed me. That’s an enemy of mine, and I need you to go after him. And the truth that they did it, the very fact they listened, the very fact the fired and misplaced or pushed out numerous conservative leaning profession prosecutors to get there, makes it all of the extra egregious.
I wish to choose up on that final level that you simply simply made there as a result of it wasn’t simply, Do this. Yeah, no drawback, sir, as a result of we’re already like completely on board with this. It truly he was directing them to do one thing in contradiction to what some profession prosecutors thought was truly there. Is that not true?
That is strictly proper. And , we in fact do not at this level know all the proof, proper? We will not understand it till trial, however there are some indicators on the market that present me that this case goes to have main issues. One, as you mentioned, a number of profession prosecutors who’re working this case reportedly put collectively a memo saying it is not there to cost. Second of all, Eric Siebert, Donald Trump had put this individual in place because the U.S. Attorney, a conservative, an individual who’s been at DOJ for a very long time, primarily ended up resigning below stress as a result of he did not wish to carry this. We’ve seen reporting that each Todd Blanche, the deputy AG, and Pam Bondi, the legal professional basic, had voiced some concern. And this is a giant inform for you, David…
Though they’re each, we must always notice publicly on board now. They’ve each been on the market.
Right. Singing a really totally different tune, however that’s reporting about what was taking place behind the scenes. Here’s one other piece of reporting that I discover actually fascinating. John Durham, you might bear in mind this man. This was the man who was the investigator particular counsel after Mueller. He obtained appointed by Trump, by Bill Barr. He spends 4 years, John Durham digging via each nuance of the way in which the FBI dealt with this investigation. Everything Jim Comey and the FBI did, 2015, 16, 17. Came up with he stretched to cost three folks, two of whom went to trial and have been acquitted. That’s how determined John Durham was to cost folks. And even he did not cost Jim Comey. And we have seen reporting that the Jim Comey prosecution crew talked to Durham and Durham informed them, look, I did not discover something in there. So these are some fairly highly effective indicators that it is a weak case.
And we’re speaking about Jim Comey being accused of mendacity to Congress, proper? That’s basically what that is about below oath. I assume, I do know you mentioned you’ve got not seen something prefer it. And I take that time totally. And, I’m not attempting to attract a direct parallel. From Trump’s perspective, and I do know Joe Biden by no means obtained on the market and publicly directed Merrick Garland to do one thing, however he believes, or publicly directed Jack Smith to do one thing. In Trump’s thoughts, he believes that is exactly what occurred to him, proper? Like that he thinks that he was focused for a political prosecution a number of occasions in the time that Joe Biden was in workplace. We don’t have any. There’s no proof to assist that, and I could not be extra clear about that, however I feel my sense in speaking to folks in Trump world, that’s the reason he sees this as a very justified factor that he is doing.
Well, I feel Trump’s obtained it half proper there, truly. You are right. And what makes this totally different is there was, there isn’t any proof that Joe Biden ever directed any of those circumstances, Joe Biden. In reality, there was reporting, and I’ve a few of this in my e-book, that Joez Biden was form of baffled by what was occurring at DOJ and was at occasions annoyed with Merrick Garland someway. So there is no such thing as a proof that Joe Biden instructed, directed, inspired this prosecution of Donald Trump. However, Donald Trump does have a good level. It doesn’t justify this, however I feel Democrats and liberals have to personal the very fact now that among the state prosecutions, the Letitia James, which isn’t a prosecution, but it surely was a use of her energy as AG to sue Donald Trump for a whole bunch of thousands and thousands of {dollars}, that was political. That was focusing on. That was weaponization. And we all know as a result of she ran on it. She mentioned, vote for me. And the primary factor I’ll do is someway nail Donald Trump. I feel folks want to return to grips with the truth that Alvin Bragg’s case, I do know it resulted in a jury verdict. That was ridiculous, the way in which he put collectively these fees, which numerous different prosecutors had handed on. I feel it is nonetheless gonna get thrown out on attraction. The Fani Willis case, that factor collapsed in catastrophe. And so I feel that in order to have credibility on this concern, folks on the left have to acknowledge that sure, Donald Trump was focused by one, two, or three of these three prosecutors, I feel all three that I simply named. And if they can not admit that, and for those who cheerleaded whereas these three prosecutions, overtly political, have been operating away, then I do not assume you have got the credibility to criticize this. I’m not saying two wrongs make a proper. I disagree with that. I feel they have been each mistaken. But in phrases of complaining now, I wish to know the place have been you when it was being finished to Trump?
And by the way in which, even in case you are of that thoughts that Letitia James pursued a political prosecution, that might not justify bringing fees about her and mortgage fraud if there is not the proof there to assist that she did one thing mistaken.
Exactly, and look, everyone knows that that is a pending investigation. From what I’ve seen of the proof in that case, that is ridiculous cost. As you may inform, I’m and have been a pointy critic of each Letitia James and Jim Comey. However, I feel that retributive payback revenge prosecutions are completely mistaken and harmful and never justified by nicely it was finished to me. I feel the way in which I’d advocate we take care of that is let’s all be straight right here. It was finished to Trump. Now he is doing it to Comey in a manner that is worse as a result of he is president. Both have been mistaken. All this crap must cease.
And it truly is, I imply, I consider that picture of, , on the Justice Department exterior courthouses, of justice in a blindfold, and if we go down this highway of forwards and backwards, that’s ripping off that blindfold.
Where does it finish, proper? That’s the query. And initially, , Trump mentioned in some unspecified time in the future final week, one thing like, I’m paraphrasing right here, however I feel we’ll see extra of those. And I needed to ask him, not that I’ve ever spoken to him, however I need someone to ask him, of what? When you say of those, and it is clear, I feel, what he means, which is individuals who tick me off, whether or not it is,.
Well, he is given his checklist. I imply, he mentions Letitia James and Adam Schiff.
Right. It’s in the RealitySocial, proper, “Shifty Schiff,” and Letitia James, and he does not say Lisa Cook in that individual one. But we all know who’s on his checklist. So the place does it finish for the following three years? Is this going to be simply one thing, is Comey gonna be the primary of a dozen? And then much more to the purpose or extra broadly, what occurs when the following president will get in? What if it is a Democrat? Do we then see it hearth again the opposite manner? What if it is JD Vance? Does he proceed it? And that is what alarms me a lot about this. We at the moment are seeing this downward spiral of retribution.
Which isn’t, I do not, I feel it is secure to say, not how this was designed to function.
And I ought to say, the wall that has been breached right here is the normal wall of independence between DOJ and the White House. Now look, I labored at DOJ, I’ve finished the analysis, I’m finished the reporting. That wall has been compromised at numerous occasions, proper? But by no means simply smashed down the way in which Donald Trump is doing it now, the place he is explicitly, publicly telling his AG, I need this individual prosecuted. I need that. And I ought to add, there is a defensive piece of this too, the place Pam Bondi has made clear, she won’t be investigating. Certainly not Donald Trump, however no one in or round his orbit. I imply, take a look at the Signal scandal. She did not even open an investigation of Mike Waltz when in the previous, that form of case would have at a minimal required an investigation. So I feel Pam Bondi has made very clear that she’s there to do Donald Trump’s bidding in a manner that we have not seen from any prior AG.
We’re going to take a fast break, we’ll have much more with Elie Honig in only a second.
‘We’re again right here with Elie Honig and I wish to speak to you the place we simply left off in our dialog about that wall of independence and at occasions it has been breached. Perhaps it’s in the method of being shattered completely now, however the notion of the way you get true, a very impartial pursuit of some political gamers on the subject of investigating and prosecuting potential breaks in the legislation, you have got this new e-book out, ‘When You Come on the King: Inside DOJ’s Pursuit of the President, from Nixon to Trump’, and what you actually take a look at right here is the historical past of the impartial counsel now particular counsel uh how this form of sub-world inside or separate and other than the Justice Department with loads of autonomy to pursue among the most excessive-profile political investigations that we’ve seen in our lifetime. Can you give me only a sense out of your reporting or give listeners, I ought to say, just a bit little bit of historical past first earlier than we delve in right here simply in phrases of, , when Ken Starr was investigating Bill Clinton, he was generally known as an impartial counsel. When Bob Mueller was doing the Russia investigation, it was a particular counsel, what is that this function and the way has it remodeled?
‘Think of it in three historic eras. First, there’s what I name the Wild West period, and that is from Ulysses S. Grant, by the way in which, enjoyable trivia reality, was the primary ever U.S. President to nominate an out of doors prosecutor in the 1870s, right through the top of Watergate. And I name it the Wild West period as a result of there have been no guidelines they have been making these things up as they went alongside all of them understood the elemental notion we’d like some outsider that is too delicate there’s possibly a battle right here however there was no guidelines. John Dean who we each know you are a colleague of ours talked to me for the e-book and John mentioned it was advert-libbed for Watergate. It was being made up as we went alongside. That’s period one. Era two kicks off in 1978 with the passage due to Watergate all of us mentioned Oh boy, we’d like some guidelines right here we passed- The Independent Counsel Act passes via Congress. And that continues to be the legislation for the following 21 years till 1999, when after a number of reauthorizations, Congress simply will get to a degree after the Ken Starr debacle and several other different decrease profile, however nonetheless crucial failed prosecutions of Mike Espy, Henry Cisneros, it is agreed mutually, Republicans, Democrats, this factor’s obtained to die, it is sunsets. So that is our center period, the impartial counsel period, 78 to 99. And from 99 via now, we have had particular counsel. Which isn’t truly a legislation, it is a DOJ regulation written by a gaggle of attorneys. And by the way in which, I interviewed one of many attorneys who was on that small panel. And one other lawyer who was on that small panel was John Roberts, who’s now the Chief Justice of the United States. So that is the regime that we have had for the final 26 years or so.
And additionally, simply as some extent of schooling right here, how do these in, and I do know it is totally different for the totally different eras you describe, however how do that impartial or particular prosecutors get appointed? Like was Congress capable of say, Hey, I wish to appoint an impartial counsel or simply the administration or the legal professional basic? Like, who will get to say now it is time for an impartial counsel?
In the early days, it was principally presidents would do it instantly. Truman did it, Grant did it. Then once we obtained in direction of Watergate, it was extra finished via the legal professional basic. Under the impartial counsel legislation, it with this complicated form of system the place the legal professional basic needed to advocate it to a panel of judges. Now for the final 26 years, it is simply as much as the AG. There’s no judges concerned, there’s not imagined to be any president concerned. It’s simply when the AG says, okay, we have a battle on our fingers, we have one thing that we have to primarily farm out to someone else.
Why is it designed to present that person who prosecutor a lot autonomy and energy with out possibly the normal guideposts that exist in a daily prosecution?
‘The rigidity inherent in any of those appointments is, on the one hand, we wish somebody from the skin. We need somebody who can come in, not be accused of being below the president’s thumb, not topic to being fired or re-confirmed, re-nominated by the president, somebody who’s going to have a level of elimination. On the opposite hand, we do not need people who find themselves completely unaccountable. We do not need a runaway prosecutor like Ken Starr, who primarily no one can cease this man. I imply, there have been factors the place Ken Starr may have been restricted and cease that lay out in the e-book that he was not. So that is the stability. We need an impartial prosecutor, however we additionally need an accountable prosecutor. And that is why, by the way in which, I ought to say, all of those methods are flawed and messy. I imply, I say on the finish of the e-book, that is the worst system. It’s paraphrasing Winston Churchill about democracy itself. It is the more severe system recognized to man, aside from all of the others. So there isn’t any simple silver bullet resolution, however that is the strain.
I imply, there was a well-known Supreme Court case, proper, across the authorization of the impartial counsel legislation, and Antonin Scalia wrote a scathing dissent as a result of I consider this, if I’m right in my understanding, this accountability concern that he felt was completely missing. How does that Scalia dissent, once more, the courtroom did rule to permit the impartial counsel to go, nonetheless inform right this moment the talk concerning the powers that this individual will get.
‘It’s such an vital dissent. This is 1988, someone challenges the constitutionality of that impartial counsel legislation. It’s an 8-1 Supreme Court determination. Scalia is the one dissenter. Even Chief Justice Rehnquist, different conservatives, mentioned it was wonderful. And Scalia writes this factor that’s nonetheless to today, particularly with conservatives and Federalist Society people known as “The Golden Dissent,” capital letters, and it has gained traction. In reality, when Judge Aileen Cannon threw out the Trump categorized paperwork case, she leaned closely on that. And primarily Scalia’s level was, I’ll not, he says one thing like, we’re creating an institutionalized wolf hanging on the flank of the elk, that means.
I imply, what a phrase, proper? Basically, we’re empowering someone and saying, go after that man proper there, sic ’em. And that is harmful. And that is a possible runaway abuse of prosecutorial energy. And the factor is, the form of the disgrace of it’s we do not actually know as a result of that Judge Cannon case was clearly going to move up the appellate courts, in all probability to the Supreme Court, however Trump wins the election, every part will get dismissed. So it form of, we form of obtained left in limbo.
And you speak about now, it’s very in the purview of the legal professional basic to nominate a particular counsel. You simply described in our final block that the present legal professional basic appears to be positioning herself as a pure political promoter and defender of Donald Trump and nothing else. And if that’s the case, then can we then anticipate that there would by no means be a second in which someone like Pam Bondi would ever decide {that a} particular counsel is required to analyze a possible battle in this administration?
There’s no manner that Pam Bondi goes to make a conventional particular counsel appointment. Like we noticed below Merrick Garland and Joe Biden with the appointments of Robert Hur to analyze Joe Biden, proper? Like we noticed below Trump 1.
‘In Trump 1: Mueller. That occurred below Trump 1, proper? There’s no manner we’ll see that. Now, the one potential use we may even see a particular counsel is to go after one in all these enemies, but it surely looks as if they’d quite do it- Remember, DOJ now has this made up weaponization working group with Ed Martin operating it. So evidently they simply wish to do it exterior the books all collectively. One of the pitches I make in the e-book, although, on the finish, particularly, is whoever turns into president subsequent goes to search out that loads of guardrails, protections, norms, traditions have been destroyed or knocked down throughout these 4 years. It’s not simply this. It’s simply the impartial justice system. It’s ethics guidelines. It’s inspectors basic. It’s restraints on making personal income while you’re president. Whoever comes subsequent, it may be tempting to go away that stuff in shambles. What president desires inspectors-basic? What president desires. You know, you may’t personal personal companies? But this establishment right here, particular counsel, some form of exterior impartial investigative mechanism and an impartial justice division extra broadly is so important to accountability, to good authorities that it is form of a plea to whoever comes subsequent that this must be restored. And by the way in which, if you would like an instance of what occurs when you do not have guidelines, initially, take a look at Jim Comey in 2016. They didn’t appoint a particular counsel when they need to have. Comey makes it up as he goes alongside and utterly works himself right into a nook and now has been criticized by each events roundly and deservedly, or take a look at what the Trump administration’s doing proper now. They’re not utilizing any, the particular counsel guidelines do put limits on what you are able to do. Instead, they’re simply saying, heck with it. We’re gonna select no matter we wish and we’ll have some weaponization working group or Lindsay Halligan will carry in some, , some political loyalists to do the case. So I feel it is, the principles are imperfect, however they’re actually higher than no guidelines.
So you permit this technique of doing all of the analysis for the e-book, reporting it, writing it. Am I listening to you accurately? You stroll away a defender of the impartial council statute or a particular counsel system to be sturdy and in place?
‘Yes, I stroll away a defender of the broad notion that we’d like some form of impartial counsel particular, no matter you wish to title it, kind system. I do recommend-.
‘Have you seen one of many flawed fashions – is there a most well-liked one you have got?
‘So I suggest one in the e-book. And I feel, traditionally, it is about time. Because for those who do the mathematics on each 20 to 25 years, we form of scrap the previous one and develop the following evolution. So I do suggest a system in the books. I will not provide you with all of the nuances of it, however primarily the concept is to have a politically accountable place, nominated by the president, confirmed by the Senate, form of like FBI administrators imagined to be, serves a set interval of time period, not coterminous with the president 5 years, 10 years, no matter, with impartial workers, impartial form of standing, protections from firing, but in addition political accountability as a result of it has to return via the president and the Senate. Similar to form of what we’ve with inspectors basic proper now, however with a bit extra permanency and a everlasting assist workers. And a broader mission than simply you, the wolf and the elk form of factor. You’re right here extra patrolling the grounds in basic. So I do consider, look, it will be actual simple. It would have been actual simple for me to make the final chapter in this e-book. It’s all screwed and let’s throw up our fingers and simply speak about how horrible the system is. But then what? Like then what, are we gonna simply, once more, return to advert-residing-ness? So the system I suggest, I acknowledge in the e-book, will not resolve every part, however I feel it is what we’d like given this second in time. And I ought to say. Having, and I talked in this e-book to 35, 36, one thing like that, on file, first-hand members, Watergate prosecutors, attorneys who represented Bill Clinton, Joe Biden, Donald Trump, protection attorneys, prosecutors, you title it, individuals who have been prosecuted, White House officers. And I feel I’m now in place to say, primarily based on what I’ve seen, that what we have seen from Watergate via now, via up till Trump 2.0, what we’re seeing now with Trump 2 .0 is basically totally different. Nobody’s been an angel. Everyone’s had their down moments. Everyone has had their moments the place they’ve undermined the system. What Trump is doing now, utterly abolishing that wall of separation, is totally different in sort. Not simply diploma, however in sort from every part we have seen in trendy historical past.
Wow. Elie Honig, thanks a lot, as all the time, to your unimaginable insights and evaluation, but in addition this nice piece of labor in your new e-book. So I urge everybody to try it.
Thanks, David. Great to be with you.
That’s it for this week’s version of the NCS Political Briefing. We’ll be again with a brand new episode subsequent Friday. Thanks a lot for listening.