1 00:00:02,759 --> 00:00:07,520 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:09,119 --> 00:00:13,160 Speaker 2: The usual question that the judge would ask is which 3 00:00:13,760 --> 00:00:18,799 Speaker 2: what who is this person? What actual position are they surveying? 4 00:00:19,079 --> 00:00:23,119 Speaker 3: The Trump administration has given Alina Habba a string of 5 00:00:23,280 --> 00:00:28,200 Speaker 3: job titles. She's been Interim US Attorney, acting US Attorney, 6 00:00:28,320 --> 00:00:33,120 Speaker 3: the first Assistant US Attorney, and special Attorney, all in 7 00:00:33,159 --> 00:00:37,360 Speaker 3: an effort to keep Habba, Trump's former personal lawyer in 8 00:00:37,440 --> 00:00:41,160 Speaker 3: the role of New Jersey's top federal prosecutor. And during 9 00:00:41,320 --> 00:00:45,919 Speaker 3: oral arguments at the Third Circuit challenging her appointment, Appellate 10 00:00:46,080 --> 00:00:51,839 Speaker 3: Judge d. Brook Smith questioned the unprecedented maneuvering by the administration. 11 00:00:52,520 --> 00:00:57,360 Speaker 2: Would you concede that the sequence of events here and 12 00:00:57,800 --> 00:00:59,040 Speaker 2: for me, they're unusual. 13 00:01:00,080 --> 00:01:01,840 Speaker 4: Cite them if you wanted to take the time. 14 00:01:02,120 --> 00:01:08,600 Speaker 2: Would you conceide that there are serious constitutional implications to 15 00:01:09,360 --> 00:01:13,520 Speaker 2: your theory here? The government's theory, which really is a 16 00:01:13,560 --> 00:01:17,360 Speaker 2: complete circumvention, it seems, of the appointments clause. 17 00:01:18,000 --> 00:01:21,160 Speaker 3: A federal judge has already found that the appointment of 18 00:01:21,200 --> 00:01:25,160 Speaker 3: Habba was done with a quote novel series of legal 19 00:01:25,200 --> 00:01:28,759 Speaker 3: and personnel moves, and that she was not lawfully serving 20 00:01:28,840 --> 00:01:32,640 Speaker 3: as US attorney for New Jersey. The appellate judges seem 21 00:01:32,760 --> 00:01:37,680 Speaker 3: skeptical of the claim by Attorney General Pam Bondi's counselor 22 00:01:37,720 --> 00:01:42,759 Speaker 3: Henry Whittaker that Habba's designation was consistent with long standing 23 00:01:42,880 --> 00:01:47,360 Speaker 3: practices of the Justice Department, and Judge D. Michael Smith 24 00:01:47,600 --> 00:01:52,280 Speaker 3: pressed Whittaker to provide examples of similar US attorney appointments, 25 00:01:52,720 --> 00:01:53,960 Speaker 3: which he couldn't do. 26 00:01:54,240 --> 00:01:59,080 Speaker 2: And told us numerous times how common practice has played 27 00:01:59,120 --> 00:01:59,560 Speaker 2: into this. 28 00:02:00,480 --> 00:02:01,160 Speaker 4: And I don't care. 29 00:02:01,080 --> 00:02:04,920 Speaker 5: About dates, I don't care about names. Can you come 30 00:02:05,000 --> 00:02:09,840 Speaker 5: up with an example of any time that such a 31 00:02:09,919 --> 00:02:15,080 Speaker 5: concatenation of events has occurred with respect to the appointment 32 00:02:15,080 --> 00:02:16,560 Speaker 5: of a United States Attorney? 33 00:02:17,600 --> 00:02:20,160 Speaker 1: Well, I guess I cannot, But I guess I would 34 00:02:20,200 --> 00:02:24,760 Speaker 1: say that what that series of precise and precisely timed 35 00:02:24,800 --> 00:02:28,320 Speaker 1: events is not in substance from what the Executive Branch 36 00:02:28,680 --> 00:02:32,040 Speaker 1: has done in other contexts and analogous contexts. 37 00:02:32,160 --> 00:02:35,960 Speaker 3: My guest is constitutional law expert Harold Krent, a professor 38 00:02:36,000 --> 00:02:40,000 Speaker 3: at the Chicago Kent College of Law. So how several 39 00:02:40,040 --> 00:02:44,399 Speaker 3: people charged with federal crimes in New Jersey are challenging 40 00:02:44,440 --> 00:02:49,160 Speaker 3: Hobba's authority to lead the US Attorney's office there tell 41 00:02:49,240 --> 00:02:52,880 Speaker 3: us about the arguments they're making at the appellate court. 42 00:02:53,320 --> 00:02:54,440 Speaker 4: Well, would it take us apack? 43 00:02:54,480 --> 00:02:57,560 Speaker 6: I mean, the appointment's clause provides that the President must 44 00:02:57,560 --> 00:03:01,400 Speaker 6: appoint all superior officers United States to consent by the Senate. 45 00:03:01,600 --> 00:03:04,600 Speaker 6: So the question here is that how we know as 46 00:03:04,639 --> 00:03:07,760 Speaker 6: a superit officer. She's a US attorney that's been decided 47 00:03:07,760 --> 00:03:11,120 Speaker 6: before a supait officer. So the President importantly gets to 48 00:03:11,200 --> 00:03:14,200 Speaker 6: fill that position, but there must be Senate consent, and 49 00:03:14,280 --> 00:03:17,840 Speaker 6: for whatever reason, the President has tried to circumvent the 50 00:03:17,880 --> 00:03:21,840 Speaker 6: Senate's power to give consent to Haba's position. 51 00:03:21,960 --> 00:03:25,160 Speaker 4: So that's the legal structure. What's happened along the way 52 00:03:25,760 --> 00:03:27,079 Speaker 4: is convoluted. 53 00:03:27,400 --> 00:03:31,240 Speaker 6: But there is another statute called the Vacancy's Act, which 54 00:03:31,240 --> 00:03:34,600 Speaker 6: says that the President can appoint certain individuals for a 55 00:03:34,680 --> 00:03:38,280 Speaker 6: limited a period of time if the position is vacant, 56 00:03:38,440 --> 00:03:42,760 Speaker 6: and thereby can get rid of the Senate consent requirement 57 00:03:43,040 --> 00:03:45,320 Speaker 6: just for that to fill the vacancy until there's time 58 00:03:45,400 --> 00:03:47,960 Speaker 6: he can make a decision and decide who should fill 59 00:03:48,000 --> 00:03:51,320 Speaker 6: that post. So he did appoint Haba in that direction. 60 00:03:51,640 --> 00:03:55,960 Speaker 6: The time period elapsed and under this congressional statute, the 61 00:03:56,120 --> 00:03:59,800 Speaker 6: first assistant, who was like a career officer, is then 62 00:03:59,840 --> 00:04:03,240 Speaker 6: to fill that position again, only until the president decides 63 00:04:03,600 --> 00:04:06,160 Speaker 6: who he wants to fill that office, subject again to 64 00:04:06,600 --> 00:04:12,160 Speaker 6: Senate consent. And so the first assistant under the statute 65 00:04:12,360 --> 00:04:15,560 Speaker 6: took over office after Hobba's time period was over. But 66 00:04:15,600 --> 00:04:18,600 Speaker 6: then she was fired, and she was fired because then 67 00:04:18,760 --> 00:04:22,200 Speaker 6: President Trump wanted to put Hobba in as the vacant 68 00:04:22,200 --> 00:04:26,400 Speaker 6: first assistant so she could continue her tenure and continue 69 00:04:26,440 --> 00:04:28,080 Speaker 6: to avoid. 70 00:04:27,880 --> 00:04:30,039 Speaker 4: The need for Senate consent. 71 00:04:30,440 --> 00:04:33,560 Speaker 6: So the president here has snubbed his nose at the 72 00:04:33,560 --> 00:04:37,760 Speaker 6: Senate continuously. He's done an end run around the appointment's clause. 73 00:04:38,000 --> 00:04:40,000 Speaker 6: And so that's the situation we're in. That's not being 74 00:04:40,120 --> 00:04:44,000 Speaker 6: challenged by several criminal defendants who are now appearing in 75 00:04:44,000 --> 00:04:45,040 Speaker 6: that jurisdiction. 76 00:04:45,400 --> 00:04:48,359 Speaker 3: One of the judges, d brook Smith, called it a 77 00:04:48,520 --> 00:04:53,240 Speaker 3: concaatenation of events. The government's attorney said this was consistent 78 00:04:53,520 --> 00:04:57,359 Speaker 3: with the long standing practice of the Justice Department, but 79 00:04:57,440 --> 00:05:02,039 Speaker 3: he couldn't point but he couldn't point any similar situations. 80 00:05:02,640 --> 00:05:05,520 Speaker 6: I mean, what the government can argue, they really have 81 00:05:05,640 --> 00:05:09,080 Speaker 6: very limited arguments, is that each step along the way 82 00:05:09,800 --> 00:05:12,479 Speaker 6: may have some kind of precedence, right, They're clearly a 83 00:05:12,520 --> 00:05:17,280 Speaker 6: first assistant can fill the position until the president appoints 84 00:05:17,440 --> 00:05:20,920 Speaker 6: a replacement. But there's never been a situation before where 85 00:05:20,920 --> 00:05:23,680 Speaker 6: they fired the first assistant so that they could put 86 00:05:23,720 --> 00:05:27,960 Speaker 6: in the person who previously had the position in so 87 00:05:28,000 --> 00:05:30,839 Speaker 6: that they can continue being in an acting position without 88 00:05:30,880 --> 00:05:34,479 Speaker 6: the necessity of senatorial consent. So clearly this is like 89 00:05:34,680 --> 00:05:37,840 Speaker 6: taking little steps, and the Justice Department has admit this 90 00:05:37,880 --> 00:05:42,359 Speaker 6: is circumventing the Senate's consent authority, and so the court 91 00:05:42,400 --> 00:05:45,000 Speaker 6: is then left with the question of, like, okay, each 92 00:05:45,040 --> 00:05:48,520 Speaker 6: little step along the way maybe has some kind of 93 00:05:48,800 --> 00:05:53,039 Speaker 6: antecedents or historical practice, But anybody looking at this could 94 00:05:53,040 --> 00:05:57,160 Speaker 6: say the president is trying to stemy the Senate's important 95 00:05:57,200 --> 00:05:58,760 Speaker 6: role under Article to the Constitution. 96 00:05:58,960 --> 00:06:03,960 Speaker 3: Also, at one point, federal judges in New Jersey declined 97 00:06:04,240 --> 00:06:08,240 Speaker 3: to keep her as the top prosecutor. 98 00:06:07,960 --> 00:06:14,279 Speaker 6: An alternative mechanism which allows judges to appoint interim us attorneys. 99 00:06:14,760 --> 00:06:16,960 Speaker 6: So there's like two different routes, you know. One is 100 00:06:17,000 --> 00:06:19,960 Speaker 6: sort of through the first assistant that we talked about before. 101 00:06:20,120 --> 00:06:22,919 Speaker 6: Another is make me triggered that the court say, oh, 102 00:06:22,960 --> 00:06:25,640 Speaker 6: there's a vacancy here, we have to do this. 103 00:06:26,040 --> 00:06:27,560 Speaker 4: The court rejected. 104 00:06:27,320 --> 00:06:32,080 Speaker 6: Abba as being not competent enough, not experienced enough, and 105 00:06:32,120 --> 00:06:35,120 Speaker 6: so that just again heightens the fact that this is 106 00:06:35,279 --> 00:06:39,840 Speaker 6: a showdown that Trump is insisting on, you know, not 107 00:06:39,920 --> 00:06:42,640 Speaker 6: getting many favors, but so far he's been able to 108 00:06:42,760 --> 00:06:44,400 Speaker 6: keep Ajaba in position. 109 00:06:45,240 --> 00:06:49,080 Speaker 3: One of the judges repeatedly suggested that one of the 110 00:06:49,200 --> 00:06:52,919 Speaker 3: key laws at issue in the case suggested that Congress 111 00:06:53,080 --> 00:06:59,280 Speaker 3: wanted unconfirmed acting top prosecutors to be career prosecutors rather 112 00:06:59,320 --> 00:07:00,520 Speaker 3: than political picks. 113 00:07:01,520 --> 00:07:04,080 Speaker 6: Yeah, so the idea of a first assistant being able 114 00:07:04,120 --> 00:07:07,240 Speaker 6: to take over it temporarily, not for permanence, but is 115 00:07:07,320 --> 00:07:10,160 Speaker 6: the idea that you want to have someone with knowledge 116 00:07:10,200 --> 00:07:14,320 Speaker 6: and experience to fill that position as a temporary head 117 00:07:14,760 --> 00:07:15,840 Speaker 6: of the vacant office. 118 00:07:16,320 --> 00:07:19,120 Speaker 4: And obviously, by firing. 119 00:07:18,800 --> 00:07:22,680 Speaker 6: The first assistant and then naming Haaba as first assistant, 120 00:07:23,000 --> 00:07:27,440 Speaker 6: the Trump administration was under cutting the congressional goal of 121 00:07:27,560 --> 00:07:31,520 Speaker 6: having somebody experienced to act as an officer until the 122 00:07:31,600 --> 00:07:34,400 Speaker 6: president can get a confirmation from Senate. I wouldn't take 123 00:07:34,400 --> 00:07:37,480 Speaker 6: that argument too far because I think President Trump can 124 00:07:37,600 --> 00:07:42,200 Speaker 6: appoint someone who is incompetent into that office and then 125 00:07:42,360 --> 00:07:44,640 Speaker 6: just have the question of whether the Senate is going 126 00:07:44,720 --> 00:07:47,960 Speaker 6: to consent or not, so that I think is not 127 00:07:48,080 --> 00:07:50,760 Speaker 6: a bar to the President appointing Kabba. 128 00:07:51,080 --> 00:07:52,360 Speaker 4: But nonetheless, the idea of. 129 00:07:52,280 --> 00:07:56,000 Speaker 6: The first Assistant is to ensure that someone with experience 130 00:07:56,520 --> 00:07:59,960 Speaker 6: and perspective take over the position on a temporary base, 131 00:08:00,640 --> 00:08:03,240 Speaker 6: and that couldn't happen because of the intervention of the 132 00:08:03,280 --> 00:08:04,120 Speaker 6: Trump administration. 133 00:08:04,640 --> 00:08:08,960 Speaker 3: The Trump administration had a fallback position that, regardless of 134 00:08:09,040 --> 00:08:14,120 Speaker 3: other statutes Pam Bondi, the US Attorney General could delegate 135 00:08:14,280 --> 00:08:18,440 Speaker 3: powers of a Senate confirmed US Attorney to Harbor for 136 00:08:18,520 --> 00:08:19,480 Speaker 3: a period of time. 137 00:08:20,440 --> 00:08:23,200 Speaker 6: Fallback has never been tested to my knowledge, and it 138 00:08:23,280 --> 00:08:27,400 Speaker 6: seems again like a circumvention of the Vacancy Act. Congress 139 00:08:27,440 --> 00:08:30,840 Speaker 6: has been very clear what should happen if there's a vacancy, 140 00:08:31,120 --> 00:08:35,719 Speaker 6: and I agree that there is ability of officers in 141 00:08:35,880 --> 00:08:39,360 Speaker 6: the administration Trump administration to delegate their own duties. But 142 00:08:39,480 --> 00:08:42,840 Speaker 6: this is not body's own duties. This is duties that 143 00:08:42,920 --> 00:08:47,199 Speaker 6: are subscribed to a US attorney and that Congress is 144 00:08:47,200 --> 00:08:49,599 Speaker 6: set up by creating office of US Attorney. So I 145 00:08:49,600 --> 00:08:52,040 Speaker 6: don't think the fallback is actually going to work here 146 00:08:52,080 --> 00:08:55,079 Speaker 6: at all. And in face of the clear steps that 147 00:08:55,320 --> 00:08:57,840 Speaker 6: I mean, the convoluted steps, but the steps that Congress 148 00:08:57,880 --> 00:09:00,320 Speaker 6: has set out in the Vacancy's Act. You know, I 149 00:09:00,320 --> 00:09:02,360 Speaker 6: think that the Trump administration is going to have a 150 00:09:02,440 --> 00:09:05,760 Speaker 6: hard time persuading the Court that what it did here 151 00:09:05,840 --> 00:09:10,679 Speaker 6: with Habba's nomination and then renomination is a bit of 152 00:09:10,720 --> 00:09:11,280 Speaker 6: pass muster. 153 00:09:11,720 --> 00:09:13,760 Speaker 3: I mean, if you take it from what happened in 154 00:09:13,840 --> 00:09:17,439 Speaker 3: the oral arguments, it seemed like the judges were questioning 155 00:09:17,480 --> 00:09:21,200 Speaker 3: the government's move. One judge called it a complete circumvention, 156 00:09:21,400 --> 00:09:25,080 Speaker 3: it seems of the appointment's clause. So assuming that the 157 00:09:25,120 --> 00:09:29,480 Speaker 3: Third Circuit says her appointment was not lawful, the Trump 158 00:09:29,480 --> 00:09:32,640 Speaker 3: administration will take it to the Supreme Court. Is there 159 00:09:32,640 --> 00:09:36,160 Speaker 3: any indication what the Supreme Court would do have they 160 00:09:36,240 --> 00:09:37,560 Speaker 3: handled anything like this? 161 00:09:38,360 --> 00:09:41,559 Speaker 6: The Vacancy's Act I've always found to be very convoluted. 162 00:09:41,679 --> 00:09:44,200 Speaker 6: It is, and you know, I think the Court will 163 00:09:44,240 --> 00:09:47,360 Speaker 6: not be fond of dealing with the intricacies of the 164 00:09:47,400 --> 00:09:48,760 Speaker 6: Vacancies Act either. 165 00:09:49,160 --> 00:09:51,480 Speaker 4: You know. The whole thing is this is just a I. 166 00:09:51,440 --> 00:09:55,080 Speaker 6: Hate to use the expression it's a trumped up legal issue, 167 00:09:55,200 --> 00:09:57,960 Speaker 6: because all the Trump has to do is a pointer 168 00:09:58,559 --> 00:10:01,440 Speaker 6: and let the chips fall where And that's what's supposed 169 00:10:01,440 --> 00:10:03,840 Speaker 6: to happen under the Constitution. So I think that the 170 00:10:03,880 --> 00:10:06,800 Speaker 6: Supreme Court would be somewhat reticent to take the case 171 00:10:06,840 --> 00:10:08,400 Speaker 6: in somewhat resistance. 172 00:10:08,280 --> 00:10:11,679 Speaker 4: Simply because of the fact that the. 173 00:10:11,200 --> 00:10:14,280 Speaker 6: Options for President Trump to cure this is just the pointer, 174 00:10:14,880 --> 00:10:18,200 Speaker 6: and his refusal to do this is causing this legal morass. 175 00:10:18,360 --> 00:10:21,600 Speaker 3: Can he a pointer if the New Jersey senators refuse 176 00:10:21,760 --> 00:10:23,480 Speaker 3: to give a blue slip? 177 00:10:24,040 --> 00:10:24,800 Speaker 4: I think he can. 178 00:10:24,920 --> 00:10:28,000 Speaker 6: I think that's that's kind of a senatorial privilege, but 179 00:10:28,040 --> 00:10:30,760 Speaker 6: it's not in the Constitution. And so I think that 180 00:10:30,800 --> 00:10:33,280 Speaker 6: the President will be on strong ground and saying yes, 181 00:10:33,320 --> 00:10:37,720 Speaker 6: there's a long cherish, if you will, tradition of having 182 00:10:37,720 --> 00:10:40,880 Speaker 6: the senators agree on appointment, but that's not in the Constitution. 183 00:10:41,280 --> 00:10:45,120 Speaker 6: And so I think if President Trump said, tradition, you know, 184 00:10:45,640 --> 00:10:49,040 Speaker 6: be done, I'm going to appoint how but personally, I 185 00:10:49,120 --> 00:10:50,160 Speaker 6: think he could probably do it. 186 00:10:51,520 --> 00:10:56,040 Speaker 3: The Habba case isn't an isolated incident. A judge in 187 00:10:56,120 --> 00:10:59,920 Speaker 3: Nevada last month ruled that Nevada's acting us to turn 188 00:11:00,200 --> 00:11:04,560 Speaker 3: was unlawfully installed to her role, and we have FBI 189 00:11:04,640 --> 00:11:08,720 Speaker 3: Director James Comy filing motions to dismiss the charges brought 190 00:11:08,760 --> 00:11:13,240 Speaker 3: against him by Lindsay Halligan. Is the Trump administration putting 191 00:11:13,600 --> 00:11:18,040 Speaker 3: all the cases that are being brought or litigated during 192 00:11:18,120 --> 00:11:23,320 Speaker 3: these terms in jeopardy with you continuing to hold on 193 00:11:23,400 --> 00:11:27,400 Speaker 3: to these temporary acting interim US attorneys? 194 00:11:27,960 --> 00:11:31,680 Speaker 6: Absolutely, I mean, I think the Trump administration is acting 195 00:11:32,240 --> 00:11:35,679 Speaker 6: needlessly and heedlessly because they could accomplish its goals more 196 00:11:35,720 --> 00:11:39,920 Speaker 6: directly by ensuring that the set of go back into session, 197 00:11:39,920 --> 00:11:43,319 Speaker 6: which has its own problems, I understand, but just making 198 00:11:43,360 --> 00:11:47,200 Speaker 6: appointments and getting senatorial consent, which is clearly the constitutional 199 00:11:47,240 --> 00:11:51,360 Speaker 6: designed methodology. So they're creating a host of headaches for 200 00:11:51,640 --> 00:11:54,400 Speaker 6: appelled courts and then later for the Supreme Court, and 201 00:11:54,440 --> 00:11:57,480 Speaker 6: they're jeopardizing some of their goals in terms of prosecution 202 00:11:57,600 --> 00:11:58,720 Speaker 6: of Comy and others. 203 00:11:59,120 --> 00:12:01,439 Speaker 3: Coming up next on the Boomberg Lawn Show, I'll continue 204 00:12:01,480 --> 00:12:05,320 Speaker 3: this conversation with Professor Harrold Krant of the Chicago Kent 205 00:12:05,520 --> 00:12:09,160 Speaker 3: College of Law. We'll tell you about Trump's ask of 206 00:12:09,320 --> 00:12:14,920 Speaker 3: two hundred thirty million dollars for compensation for past investigations 207 00:12:14,960 --> 00:12:16,760 Speaker 3: of him by the Justice Department. 208 00:12:17,360 --> 00:12:19,320 Speaker 4: Well, yeah, they probably will be a lot of money. 209 00:12:19,559 --> 00:12:22,840 Speaker 2: But if I get money from archety, I'll do something 210 00:12:22,920 --> 00:12:25,719 Speaker 2: nice with it, like give it to charity or give 211 00:12:25,760 --> 00:12:27,960 Speaker 2: it to the White House where we restore the White House. 212 00:12:28,440 --> 00:12:31,840 Speaker 3: I'm June Grosso. When you're listening to Bloomberg. Hew, let's 213 00:12:31,880 --> 00:12:36,240 Speaker 3: turn to another legal issue involving President Trump. He's suing 214 00:12:36,280 --> 00:12:40,439 Speaker 3: his own Justice Department for two hundred thirty million dollars 215 00:12:40,440 --> 00:12:46,040 Speaker 3: in compensation related to the investigations into whether his campaign 216 00:12:46,240 --> 00:12:50,600 Speaker 3: colluded with Russia in connection with the twenty sixteen election 217 00:12:51,400 --> 00:12:56,600 Speaker 3: and his post presidential retention of classified documents. The New 218 00:12:56,679 --> 00:13:01,360 Speaker 3: York Times first reported that, but Trump has basically confirmed 219 00:13:01,360 --> 00:13:03,920 Speaker 3: it with comments in the Oval office. 220 00:13:04,600 --> 00:13:08,160 Speaker 2: We have numerous cases having to do with the fraud 221 00:13:08,200 --> 00:13:11,120 Speaker 2: of the election, the twenty twenty election, and because of 222 00:13:11,400 --> 00:13:14,520 Speaker 2: everything that we found out, I guess they owe. 223 00:13:14,360 --> 00:13:15,160 Speaker 4: Me a lot of money. 224 00:13:15,520 --> 00:13:17,760 Speaker 3: This is yet another time when I'm going to use 225 00:13:17,800 --> 00:13:19,520 Speaker 3: the word unprecedented. 226 00:13:20,160 --> 00:13:23,560 Speaker 6: So this is the most on the one hand, amazing 227 00:13:23,800 --> 00:13:26,679 Speaker 6: hutzba or hubris than any of us have seen. Because 228 00:13:26,720 --> 00:13:30,319 Speaker 6: what the President is saying is because the former administration 229 00:13:30,640 --> 00:13:33,959 Speaker 6: investigated my actions with the class of our documents, investigated 230 00:13:34,000 --> 00:13:38,240 Speaker 6: my role in the Russia supposed to influence of the 231 00:13:38,280 --> 00:13:43,360 Speaker 6: twenty sixteen election, that they've committed torts. They've committed torts 232 00:13:43,400 --> 00:13:48,080 Speaker 6: against me violated by privacy rights, malicious prosecution, and therefore, 233 00:13:48,120 --> 00:13:50,600 Speaker 6: because of those torts, I can recover under the Federal 234 00:13:50,640 --> 00:13:53,440 Speaker 6: Tort Claims Act. Federal Tort Claims Act is a government's 235 00:13:53,480 --> 00:13:59,439 Speaker 6: waiver of immunity from tortsuit in particularly defined circumstances, and 236 00:14:00,200 --> 00:14:03,840 Speaker 6: the Pedaltory Claims Act. Before you can sue in court 237 00:14:03,920 --> 00:14:07,360 Speaker 6: for a tourt, you can file an administrative claim before 238 00:14:07,400 --> 00:14:11,760 Speaker 6: the agency that one asserts cause the individual harm. So 239 00:14:11,840 --> 00:14:15,120 Speaker 6: what this is is an administrative claim preparatory to a 240 00:14:15,200 --> 00:14:19,400 Speaker 6: potential Pederaltory Claims Act lawsuit saying that I was injured 241 00:14:19,480 --> 00:14:24,600 Speaker 6: by torts through this investigation in both these two contexts. 242 00:14:24,840 --> 00:14:28,720 Speaker 6: And why this is so unbelievable is then it's the 243 00:14:28,960 --> 00:14:31,960 Speaker 6: Justice Department that gets to decide whether to pay the 244 00:14:32,000 --> 00:14:34,800 Speaker 6: claims or not, so that people he can fire his 245 00:14:34,880 --> 00:14:38,280 Speaker 6: own former personal attorneys then will sit on this issue 246 00:14:38,480 --> 00:14:42,560 Speaker 6: about whether he deserves compensation. So there's no court review, 247 00:14:42,920 --> 00:14:46,720 Speaker 6: there's no public review. This is insider. It's like opening 248 00:14:46,760 --> 00:14:48,880 Speaker 6: up the treasury. Let me scoop out as much as 249 00:14:48,920 --> 00:14:50,720 Speaker 6: I want to help out my family. 250 00:14:51,120 --> 00:14:54,040 Speaker 4: That's what this is in essence, and it's just outrageous. 251 00:14:54,120 --> 00:14:58,240 Speaker 6: But let me also say that what's amazing about this 252 00:14:58,360 --> 00:15:01,320 Speaker 6: that I'm sure the President hasn't considered is this is 253 00:15:01,480 --> 00:15:05,080 Speaker 6: opening up the same process for those who've been injured 254 00:15:05,080 --> 00:15:08,320 Speaker 6: by ice, because what people are saying is the only 255 00:15:08,440 --> 00:15:12,840 Speaker 6: type of compensation allowed will be for people to go 256 00:15:12,880 --> 00:15:17,400 Speaker 6: before the Federal Towart Claims Act and basically allege claims 257 00:15:17,400 --> 00:15:23,840 Speaker 6: of brutality, false arrests, malicious prosecution, privacy rights invasions by 258 00:15:23,960 --> 00:15:27,920 Speaker 6: ICE officers. And if I were defending those ICE officers, 259 00:15:28,000 --> 00:15:30,640 Speaker 6: I would say, well, look, the President's done the same thing, 260 00:15:31,000 --> 00:15:34,040 Speaker 6: almost the same theories. If the Presidence says we can 261 00:15:34,160 --> 00:15:37,040 Speaker 6: use the Federal Tort Claims Act for his own purposes, 262 00:15:37,200 --> 00:15:40,080 Speaker 6: then obviously people have been injured by ice officers should 263 00:15:40,120 --> 00:15:43,000 Speaker 6: be able to use the mechanism despite the defenses and 264 00:15:43,040 --> 00:15:44,520 Speaker 6: the Federal Tort Claims Act itself. 265 00:15:44,800 --> 00:15:48,120 Speaker 3: Accord to the Justice Department manual, settlements of claims against 266 00:15:48,120 --> 00:15:51,280 Speaker 3: the Department for more than four million dollars must be 267 00:15:51,360 --> 00:15:55,320 Speaker 3: approved by the Deputy Attorney General or the Associate Attorney General. 268 00:15:55,680 --> 00:15:59,800 Speaker 3: The Deputy Attorney General is Todd Bland, who represented Trump 269 00:16:00,040 --> 00:16:02,480 Speaker 3: in his new York criminal case and in the mar 270 00:16:02,480 --> 00:16:07,920 Speaker 3: Alago classified documents case, and the Associate Attorney General is 271 00:16:07,960 --> 00:16:13,520 Speaker 3: Stanley Woodward, who represented Trump's valet and co defendant also 272 00:16:13,640 --> 00:16:17,680 Speaker 3: in the Marra a Lago investigation. So the ethical issues 273 00:16:17,760 --> 00:16:20,560 Speaker 3: are apparent. You don't have to be a lawyer to 274 00:16:20,640 --> 00:16:24,920 Speaker 3: see them. But who's going to stop them? 275 00:16:25,800 --> 00:16:26,360 Speaker 4: Not you or me? 276 00:16:27,400 --> 00:16:32,920 Speaker 3: A Justice Department spokesperson said, in any circumstance, all officials 277 00:16:32,920 --> 00:16:36,320 Speaker 3: at the Department of Justice follow the guidance of career 278 00:16:36,520 --> 00:16:42,600 Speaker 3: ethics officials. However, Attorney General Pam Bondi fired the department's 279 00:16:42,680 --> 00:16:47,880 Speaker 3: top official responsible for advising the Attorney General and the 280 00:16:47,920 --> 00:16:52,360 Speaker 3: Deputy Attorney General on ethics issues in July, and there 281 00:16:52,520 --> 00:16:53,600 Speaker 3: is no replacement. 282 00:16:54,280 --> 00:16:58,480 Speaker 6: And of course the most recent appointment individual had to 283 00:16:58,720 --> 00:17:02,600 Speaker 6: accuse himself because of antisemitic and anti black sentiments that 284 00:17:02,680 --> 00:17:05,600 Speaker 6: he articulated. So yeah, we don't have a top ethics 285 00:17:05,640 --> 00:17:08,119 Speaker 6: official anymore. There is just no break. There's no internal 286 00:17:08,119 --> 00:17:10,720 Speaker 6: guardrail in this. It's a smart move on Trump, but 287 00:17:10,760 --> 00:17:13,399 Speaker 6: it's a disgusting move because it just shows the problem 288 00:17:13,480 --> 00:17:18,000 Speaker 6: of having no type of separation or independence. And so 289 00:17:18,560 --> 00:17:21,000 Speaker 6: I don't know whether President Trump will go through with it, 290 00:17:21,040 --> 00:17:24,439 Speaker 6: But he actually could scoop millions of dollars from the 291 00:17:24,520 --> 00:17:28,720 Speaker 6: US Treasury and deposited his account based upon this administrative claim. 292 00:17:28,880 --> 00:17:31,320 Speaker 3: And he knows what's going on because in the Oval 293 00:17:31,359 --> 00:17:34,240 Speaker 3: office he said, I'm the one who makes the decision, 294 00:17:34,800 --> 00:17:36,160 Speaker 3: and that. 295 00:17:36,160 --> 00:17:38,640 Speaker 2: Decision would have to go thrust my desk, and it's 296 00:17:38,640 --> 00:17:41,640 Speaker 2: awfully it's range to make a decision where I'm paying myself. 297 00:17:42,520 --> 00:17:45,199 Speaker 3: The problem is will we know when this happens or 298 00:17:45,920 --> 00:17:50,440 Speaker 3: is it all internally done within the Justice Department. 299 00:17:50,720 --> 00:17:53,119 Speaker 6: The actual payment has to be in a record, okay, 300 00:17:53,440 --> 00:17:57,840 Speaker 6: so there will be legally cognizable means to say whether 301 00:17:57,960 --> 00:18:01,040 Speaker 6: or not this happened. But the deliberates don't have to 302 00:18:01,040 --> 00:18:02,720 Speaker 6: be in public, so we're not going to get a 303 00:18:02,760 --> 00:18:04,639 Speaker 6: sense of who said what there was that going to 304 00:18:04,680 --> 00:18:08,000 Speaker 6: be like reefs before court. This is an internal decision 305 00:18:08,080 --> 00:18:12,480 Speaker 6: by his deputy and associate as to whether. 306 00:18:12,359 --> 00:18:13,640 Speaker 4: And how much to pay him. 307 00:18:14,200 --> 00:18:17,359 Speaker 6: But we will know that taxpayer moneys will be allocated 308 00:18:17,600 --> 00:18:20,960 Speaker 6: to his bank accounts. And who knew that being president 309 00:18:20,960 --> 00:18:24,160 Speaker 6: would be so profitable? This is just another ingenious way 310 00:18:24,560 --> 00:18:28,160 Speaker 6: that President Trump has bound to line his own potentially 311 00:18:28,200 --> 00:18:31,200 Speaker 6: line his own pockets at the expense of the American taxpayer. 312 00:18:31,760 --> 00:18:35,480 Speaker 3: Unprecedented. I'll say it again, unprecedented. Thanks so much, Hal 313 00:18:35,600 --> 00:18:39,120 Speaker 3: for joining me. That's Professor Harold Krant other Chicago Kent 314 00:18:39,280 --> 00:18:44,720 Speaker 3: College of Law. Former FBI director James Comy has moved 315 00:18:44,760 --> 00:18:49,280 Speaker 3: to dismiss the Justice Department's indictment against him, arguing that 316 00:18:49,320 --> 00:18:53,240 Speaker 3: he was a victim of vindictive prosecution by President Donald 317 00:18:53,240 --> 00:18:56,920 Speaker 3: Trump and challenging the appointment of the prosecutor who brought 318 00:18:56,960 --> 00:19:00,359 Speaker 3: the case. Comy's lawyers argue that the appointm and a 319 00:19:00,400 --> 00:19:04,320 Speaker 3: former White House aide, Lindsay Halligan, to be interim US 320 00:19:04,400 --> 00:19:08,760 Speaker 3: Attorney for the Eastern District of Virginia was unlawful and 321 00:19:08,800 --> 00:19:12,600 Speaker 3: that the indictment is a nullity because no properly appointed 322 00:19:12,680 --> 00:19:17,240 Speaker 3: Executive Branch officials sought and obtained it. Camy also argues 323 00:19:17,280 --> 00:19:21,240 Speaker 3: that he was singled out and targeted for prosecution because 324 00:19:21,240 --> 00:19:24,439 Speaker 3: he's been a vocal critic of Trump for years. My 325 00:19:24,560 --> 00:19:28,000 Speaker 3: guest is Abby Smith, director of the Criminal Defense and 326 00:19:28,080 --> 00:19:32,840 Speaker 3: Prisoner Advocacy Clinic at Georgetown Law. Abby tell us about 327 00:19:32,840 --> 00:19:36,200 Speaker 3: his vindictive and selective prosecution motions. 328 00:19:37,280 --> 00:19:41,840 Speaker 7: There are two ways to attack the charging decision of 329 00:19:41,920 --> 00:19:45,720 Speaker 7: a prosecutor. But first it should be understood that prosecutors 330 00:19:45,760 --> 00:19:50,879 Speaker 7: had enormous discretion and deciding who to charge and what 331 00:19:51,080 --> 00:19:54,920 Speaker 7: to charge, even though as a matter of ethics, under 332 00:19:55,840 --> 00:19:59,680 Speaker 7: the rules of professional conduct, prosecutors are supposed to refrain 333 00:19:59,760 --> 00:20:04,959 Speaker 7: from prosecuting a charge where there is no probable cause, 334 00:20:05,440 --> 00:20:11,199 Speaker 7: and prosecutors are supposed to charge crimes, not people. But 335 00:20:11,840 --> 00:20:17,760 Speaker 7: Comy doesn't get to rely on a critique of the 336 00:20:17,800 --> 00:20:23,000 Speaker 7: Department of Justice's ethics. He has to mount a constitutional 337 00:20:23,200 --> 00:20:27,439 Speaker 7: attack on his charges, and there are two ways to 338 00:20:27,520 --> 00:20:32,920 Speaker 7: do that. The first is by challenging the prosecution as selective. 339 00:20:33,520 --> 00:20:38,400 Speaker 7: And people tend to use selective and vindictive together. They're 340 00:20:38,440 --> 00:20:43,160 Speaker 7: actually two different things, and they rely on two different 341 00:20:43,560 --> 00:20:54,640 Speaker 7: constitutional rights. Selective prosecutions prohibit prosecutors from prosecuting people based 342 00:20:54,840 --> 00:21:00,840 Speaker 7: on an arbitrary classification. Usually selective and enforcement has to 343 00:21:00,880 --> 00:21:05,720 Speaker 7: do with prosecutions based on race, or gender or ethnicity 344 00:21:05,920 --> 00:21:10,639 Speaker 7: or something like that. But the Constitution also forbids, and 345 00:21:10,920 --> 00:21:14,439 Speaker 7: this is as a matter of equal protection, a prosecution 346 00:21:14,600 --> 00:21:21,840 Speaker 7: that is based on an arbitrary classification. So race, religion, gender, ethnicity, 347 00:21:21,960 --> 00:21:26,800 Speaker 7: those are the typical bases for a claim of selective prosecution. 348 00:21:26,880 --> 00:21:30,639 Speaker 7: But there's this other phrase called arbitrary classification, and I 349 00:21:30,640 --> 00:21:35,479 Speaker 7: think that's where Jim Comey lives. Here's the problem. I mean, 350 00:21:35,480 --> 00:21:40,080 Speaker 7: there are many problems with a selective enforcement claim. First 351 00:21:40,080 --> 00:21:43,560 Speaker 7: of all, because no doubt his lawyers are mounting this 352 00:21:43,640 --> 00:21:46,320 Speaker 7: claim in order to get the case dismissed. It's not 353 00:21:46,440 --> 00:21:50,800 Speaker 7: at all clear that dismissal is necessarily the sanction. I 354 00:21:50,840 --> 00:21:55,280 Speaker 7: mean it could be, and the stronger the claim, the 355 00:21:55,359 --> 00:21:59,920 Speaker 7: more likely dismissal should happen. But the sanction is not 356 00:22:00,200 --> 00:22:06,119 Speaker 7: a given and it's a pretty demanding process for the accused, 357 00:22:06,400 --> 00:22:11,280 Speaker 7: and you know, often it's an unsuccessful challenge by the 358 00:22:11,400 --> 00:22:19,280 Speaker 7: accused because in order to succeed under a selective prosecution claim, 359 00:22:19,920 --> 00:22:23,720 Speaker 7: there needs to be a bunch of things that the defendant, 360 00:22:23,920 --> 00:22:29,200 Speaker 7: mister Comy can prove first that he has been selected 361 00:22:29,440 --> 00:22:32,800 Speaker 7: arbitrarily as a result of a you know, a particular 362 00:22:32,840 --> 00:22:37,000 Speaker 7: classification for him. I don't know what that classification would 363 00:22:37,000 --> 00:22:40,760 Speaker 7: be called. Mister Comy was the director of the FBI, 364 00:22:41,280 --> 00:22:47,040 Speaker 7: and so he engaged in investigations that Donald Trump didn't like. 365 00:22:47,400 --> 00:22:51,280 Speaker 7: I guess that would be his classification. So he has 366 00:22:51,359 --> 00:22:58,520 Speaker 7: to show that that particular classification is not legitimate, and 367 00:22:58,560 --> 00:23:01,440 Speaker 7: it's not an investigation or a prosecution with a legitimate 368 00:23:01,520 --> 00:23:05,320 Speaker 7: law enforcement purpose. The other thing that the defendant has 369 00:23:05,359 --> 00:23:08,280 Speaker 7: to do is show that other people who have done 370 00:23:08,320 --> 00:23:12,520 Speaker 7: the same exact thing weren't prosecuted. So it's sort of 371 00:23:12,560 --> 00:23:19,040 Speaker 7: twofold the prosecuting him for his arbitrary classification. Number one 372 00:23:19,080 --> 00:23:23,840 Speaker 7: and number two, similarly situated people have not been prosecuted. 373 00:23:24,280 --> 00:23:24,440 Speaker 4: Well. 374 00:23:24,520 --> 00:23:28,240 Speaker 3: Comy is pointing to four former Trump cabinet officials who 375 00:23:28,760 --> 00:23:33,720 Speaker 3: he says were spared prosecution despite similar allegations they lied 376 00:23:33,760 --> 00:23:37,240 Speaker 3: to Congress. What about vindictive prosecution. 377 00:23:37,080 --> 00:23:39,760 Speaker 7: So then there's vindictives. And these two things are different, 378 00:23:39,800 --> 00:23:43,520 Speaker 7: and they're based on two different constitutional claims. So selective 379 00:23:43,560 --> 00:23:49,040 Speaker 7: prosecution is an equal protection claim. Vindictive prosecution is a 380 00:23:49,119 --> 00:23:55,080 Speaker 7: due process claim. And you know, a prosecutor initiates prosecution 381 00:23:55,480 --> 00:24:01,080 Speaker 7: or increases charges in an already existing prosecution in retaliation 382 00:24:01,720 --> 00:24:06,600 Speaker 7: generally for a defendant exercising some legal right. Like a 383 00:24:06,680 --> 00:24:10,919 Speaker 7: typical case of vindictive prosecution would be in states that 384 00:24:11,119 --> 00:24:15,520 Speaker 7: have a kind of two step Denovo process, where the 385 00:24:15,600 --> 00:24:18,560 Speaker 7: very first trial is a bench trial, and then if 386 00:24:18,560 --> 00:24:21,400 Speaker 7: a person is convicted at the bench trial, they can 387 00:24:21,400 --> 00:24:24,920 Speaker 7: seek a jury trial. If the defendant was charged with 388 00:24:25,040 --> 00:24:28,919 Speaker 7: misdemeanor assault at the bench trial, and as a result 389 00:24:28,960 --> 00:24:31,800 Speaker 7: of the defendant asserting his right to a jury trial, 390 00:24:31,840 --> 00:24:35,680 Speaker 7: the prosecution then decides to charge him with felony aggravated assault. 391 00:24:36,200 --> 00:24:40,720 Speaker 7: That's the typical example of a vindictive prosecution. It needs 392 00:24:40,760 --> 00:24:45,320 Speaker 7: to be retaliation for a specific action taken by the defendant. 393 00:24:45,600 --> 00:24:50,600 Speaker 7: So for mister Comy, here's the thing. It feels vindictive. 394 00:24:51,440 --> 00:24:55,159 Speaker 7: It feels that he is being prosecuted only because he 395 00:24:55,320 --> 00:24:59,520 Speaker 7: is one of apparently many people who are now on 396 00:25:00,160 --> 00:25:03,760 Speaker 7: can only be called Donald Trump's enemies list. Is there 397 00:25:03,800 --> 00:25:07,800 Speaker 7: another reason for the prosecution aside from a vindictive one? 398 00:25:08,000 --> 00:25:11,320 Speaker 7: Is the question for a vindictive prosecution, you know, is 399 00:25:11,359 --> 00:25:16,320 Speaker 7: this a crime that needs to be prosecuted or is 400 00:25:16,359 --> 00:25:21,600 Speaker 7: this so clearly retaliation? And you know, it's hard to 401 00:25:21,680 --> 00:25:27,200 Speaker 7: figure out prosecutorial motive for a vindictive prosecution. I think 402 00:25:27,320 --> 00:25:30,359 Speaker 7: the motive is much more a part of that claim. 403 00:25:30,640 --> 00:25:34,760 Speaker 7: For selective prosecution, you're sort of looking at proof of 404 00:25:35,080 --> 00:25:38,960 Speaker 7: kinds of crimes, people who are prosecuted, people who are not. 405 00:25:39,720 --> 00:25:43,520 Speaker 7: Both things are really really hard. A typical example of 406 00:25:43,640 --> 00:25:48,159 Speaker 7: selective prosecution challenges. We're kind of the crack cocaine, powder 407 00:25:48,280 --> 00:25:53,199 Speaker 7: cocaine prosecutions and the sentencing for crack cocaine because it 408 00:25:53,240 --> 00:25:56,080 Speaker 7: was so much more of a black person's crime than 409 00:25:56,080 --> 00:26:00,720 Speaker 7: a white person's crime. But those challenges were not especially successful. 410 00:26:01,119 --> 00:26:05,399 Speaker 7: This is really novel. It's what we would call them. 411 00:26:05,440 --> 00:26:09,080 Speaker 7: The law suey generous. At least in my lifetime, and 412 00:26:09,160 --> 00:26:11,560 Speaker 7: I've been practicing law for more than forty years. I 413 00:26:11,600 --> 00:26:16,360 Speaker 7: can't think of an example that is at all analogous 414 00:26:16,400 --> 00:26:19,359 Speaker 7: to the prosecution of James Comy. You know, it's not. 415 00:26:19,480 --> 00:26:24,000 Speaker 7: The previous heads of the FBI were perfect human beings 416 00:26:24,600 --> 00:26:28,720 Speaker 7: and acted, you know, with absolutely no motive other than 417 00:26:28,800 --> 00:26:31,760 Speaker 7: law enforcement. Right, we all know a whole lot more 418 00:26:31,840 --> 00:26:35,720 Speaker 7: about Jay Edgar Hoover than maybe we did at the time. 419 00:26:36,240 --> 00:26:39,360 Speaker 7: But you know, I can't really come up with an 420 00:26:39,400 --> 00:26:42,600 Speaker 7: example that feels at all like the Komy example. Nor 421 00:26:42,680 --> 00:26:44,359 Speaker 7: can I come up with an example that feels like 422 00:26:44,760 --> 00:26:45,760 Speaker 7: Letitia James. 423 00:26:46,119 --> 00:26:49,760 Speaker 3: My question is too, so you're looking for the prosecutor's 424 00:26:49,960 --> 00:26:55,919 Speaker 3: motive here. The motive is coming from the president, right, So, 425 00:26:56,320 --> 00:27:00,000 Speaker 3: but can they attribute to the president's vindictiveness to the process. 426 00:27:00,920 --> 00:27:04,359 Speaker 7: Okay, that's a great question. I think here you can 427 00:27:05,160 --> 00:27:08,440 Speaker 7: because there's some data to support that the Attorney General 428 00:27:08,480 --> 00:27:13,919 Speaker 7: the United States does Donald Trump's bidding period end of story. 429 00:27:14,520 --> 00:27:18,600 Speaker 7: That you know, Pamela Bondi has offered zero resistance from 430 00:27:18,640 --> 00:27:22,040 Speaker 7: what any of us can see. Now, of course we 431 00:27:22,119 --> 00:27:25,919 Speaker 7: don't know what happens behind closed doors, but you know, 432 00:27:25,960 --> 00:27:30,560 Speaker 7: when prosecutors are being fired for not doing the president's 433 00:27:30,600 --> 00:27:34,000 Speaker 7: bidding and they're being fired by Pamela Bondi and then 434 00:27:34,080 --> 00:27:37,240 Speaker 7: substituted with somebody who's willing to do the president's bidding, 435 00:27:37,320 --> 00:27:40,000 Speaker 7: I think it's fair to say Pamela Bondi is the 436 00:27:40,080 --> 00:27:43,720 Speaker 7: surrogate for Donald Trump. I mean, the reason that I 437 00:27:43,760 --> 00:27:47,239 Speaker 7: can't come up with any you know, analogous behavior is, 438 00:27:47,520 --> 00:27:50,760 Speaker 7: I mean, not in my lifetime and certainly not since 439 00:27:51,480 --> 00:27:56,680 Speaker 7: Watergate has any president used the Department of Justice as 440 00:27:56,720 --> 00:27:59,720 Speaker 7: his own law office. The Department of Justice has a 441 00:27:59,800 --> 00:28:05,359 Speaker 7: law history of independence, and that was sharpened in the 442 00:28:05,400 --> 00:28:09,920 Speaker 7: aftermath of Watergate. And so you know, it's very hard 443 00:28:10,000 --> 00:28:12,760 Speaker 7: to come up with an example. You know, my free 444 00:28:12,800 --> 00:28:15,200 Speaker 7: association would be to go back to John F. Kennedy. 445 00:28:15,320 --> 00:28:17,879 Speaker 7: His brother was the Attorney General of the United States. 446 00:28:17,920 --> 00:28:21,800 Speaker 7: His brother certainly had a beef with any number of people, 447 00:28:21,800 --> 00:28:25,399 Speaker 7: including j Edgar Hoover, but there were no prosecutions that 448 00:28:25,440 --> 00:28:30,200 Speaker 7: were clearly the result of an agenda that was based 449 00:28:30,200 --> 00:28:33,080 Speaker 7: in animus. I don't think can you come. 450 00:28:32,960 --> 00:28:34,560 Speaker 2: Up with no? I can't. No. 451 00:28:34,600 --> 00:28:37,200 Speaker 3: One seems to have come up with a good example 452 00:28:37,240 --> 00:28:40,440 Speaker 3: of this. What about his other claim that you know, 453 00:28:40,520 --> 00:28:44,600 Speaker 3: Lindsay Halligan wasn't properly appointed to the role. 454 00:28:44,880 --> 00:28:47,280 Speaker 7: I think those claims are really interesting, and they're happening, 455 00:28:47,320 --> 00:28:50,040 Speaker 7: not just with Lindsay Helligan. I hate to be hopeful, 456 00:28:50,400 --> 00:28:54,640 Speaker 7: but I feel somewhat hopeful about these kinds of pre 457 00:28:54,720 --> 00:29:00,720 Speaker 7: trial motion being filed by people like James Tomey, James 458 00:29:00,760 --> 00:29:03,600 Speaker 7: and so on. He's in front of Michael Knockmanoff. I 459 00:29:03,960 --> 00:29:07,640 Speaker 7: could not be better casting for the defense. Michael Knockmanoff 460 00:29:07,720 --> 00:29:10,600 Speaker 7: was the chief federal defender in the Eastern District of Virginia. 461 00:29:10,720 --> 00:29:15,200 Speaker 7: He's a really smart and able guy and a courageous guy. 462 00:29:15,960 --> 00:29:20,000 Speaker 7: The last time there was a government shutdown, it had 463 00:29:20,000 --> 00:29:22,640 Speaker 7: a direct impact on all the federal public defender officers 464 00:29:22,680 --> 00:29:25,760 Speaker 7: across the country, and Michael Knockmanoff played a leadership role. 465 00:29:26,000 --> 00:29:29,280 Speaker 7: I mean, he's a really smart and able guy. And 466 00:29:29,680 --> 00:29:31,239 Speaker 7: he's the kind of judge who will say, this has 467 00:29:31,280 --> 00:29:36,120 Speaker 7: never happened before, but if arbitrary means anything, it lives 468 00:29:36,160 --> 00:29:39,720 Speaker 7: in this case. You know, if there could be evidence 469 00:29:39,720 --> 00:29:42,960 Speaker 7: of a vindictive prosecution, I think he's the kind of 470 00:29:43,040 --> 00:29:45,360 Speaker 7: judge that would find it in this case. And I 471 00:29:45,480 --> 00:29:48,040 Speaker 7: have to imagine too. You know, Comy's warriors are all 472 00:29:48,040 --> 00:29:52,600 Speaker 7: about a former federal prosecutors, so very smart and able, 473 00:29:52,720 --> 00:29:56,320 Speaker 7: and they will present a good case. They're not William Kuntler. 474 00:29:57,000 --> 00:30:00,600 Speaker 7: I mean, they're going to present a very low thing case. 475 00:30:01,200 --> 00:30:04,800 Speaker 3: And Comey's beefing up his defense team even more. He 476 00:30:04,960 --> 00:30:09,240 Speaker 3: recently hired veteran appellate litigator Michael R. Dreeben, who was 477 00:30:09,280 --> 00:30:13,640 Speaker 3: formerly the Justice Department's Deputy Solicitor General, as well as 478 00:30:13,800 --> 00:30:18,280 Speaker 3: Rebecca Donalleski, a former chief of the Public Corruption Unit 479 00:30:18,720 --> 00:30:21,280 Speaker 3: at the US Attorney's Office in Manhattan. 480 00:30:21,720 --> 00:30:24,640 Speaker 7: Yes, he has. It's got to be incredibly costly. And 481 00:30:24,880 --> 00:30:27,480 Speaker 7: you know what, it's scary. Once a person is being 482 00:30:27,960 --> 00:30:31,200 Speaker 7: they're scared. They're like any other client of mine. It 483 00:30:31,240 --> 00:30:33,920 Speaker 7: doesn't matter how powerful they are in the world. It's 484 00:30:34,000 --> 00:30:37,960 Speaker 7: scary because somebody is threatening them with a prison sentence 485 00:30:38,200 --> 00:30:42,040 Speaker 7: and forcing them to get canceled and forcing them to basically, 486 00:30:42,440 --> 00:30:45,280 Speaker 7: you know, defend their reputation. So you know, it's a 487 00:30:45,280 --> 00:30:49,800 Speaker 7: big deal. And that's the ethics are essential for prosecutors. 488 00:30:50,040 --> 00:30:52,840 Speaker 7: You know, prosecutors have so much power. They're not supposed 489 00:30:52,880 --> 00:30:55,880 Speaker 7: to wield it as if it's nothing ethical. Rules say 490 00:30:55,960 --> 00:30:59,320 Speaker 7: in the very first content following the rules a prosecutor 491 00:30:59,320 --> 00:31:02,360 Speaker 7: as a response ability of a Minister of Justice not 492 00:31:02,520 --> 00:31:05,800 Speaker 7: simply that of an advocate. They're supposed to be restrained. 493 00:31:06,080 --> 00:31:09,600 Speaker 7: They're supposed to care about procedural justice. But if this 494 00:31:09,800 --> 00:31:13,240 Speaker 7: is not selective prosecution, and if this is not nvictive prosecution, 495 00:31:13,360 --> 00:31:15,920 Speaker 7: I honestly don't know whatever would be what's the point 496 00:31:15,920 --> 00:31:19,120 Speaker 7: of having those challenges? If this does not meet up 497 00:31:19,160 --> 00:31:19,880 Speaker 7: with them. 498 00:31:20,080 --> 00:31:22,239 Speaker 3: We'll have to see what the government's answer is to 499 00:31:22,440 --> 00:31:26,920 Speaker 3: Comy's motion. Thanks so much, Abby. That's Abby Smith, director 500 00:31:26,960 --> 00:31:31,160 Speaker 3: of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law. 501 00:31:31,920 --> 00:31:34,280 Speaker 3: And that's it for this edition of the Bloomberg Law Show. 502 00:31:34,600 --> 00:31:36,920 Speaker 3: Remember you can always get the latest legal news on 503 00:31:37,000 --> 00:31:41,280 Speaker 3: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 504 00:31:41,440 --> 00:31:46,480 Speaker 3: and at www dot Bloomberg dot com, slash podcast Slash Law, 505 00:31:46,880 --> 00:31:49,480 Speaker 3: and remember to tune into The Bloomberg Law Show every 506 00:31:49,520 --> 00:31:53,440 Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso 507 00:31:53,560 --> 00:31:55,160 Speaker 3: and you're listening to Bloomberg