WEBVTT - Comey Gets Grand Jury Transcripts & Texas Redistricting Blocked 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.720 --> 0:00:12.960 According to a judge, the Justice Department's indictment of James 0:00:13.000 --> 0:00:16.920 Comey was riddled with problems that may give the former 0:00:17.120 --> 0:00:21.439 FBI director legal grounds to have it dismissed, and US 0:00:21.480 --> 0:00:27.120 Magistrate Judge William Fitzpatrick has ordered an extraordinary remedy the 0:00:27.160 --> 0:00:31.320 release of all grand jury materials to the defense due 0:00:31.360 --> 0:00:35.040 to the prospect that government misconduct may have tainted the 0:00:35.080 --> 0:00:39.280 grand jury proceedings. In a blistering assessment of the Justice 0:00:39.320 --> 0:00:44.040 Department's actions leading up to the indictment, Fitzpatrick cited eleven 0:00:44.120 --> 0:00:49.080 potential missteps, including fundamental misstatements of the lawn to the 0:00:49.080 --> 0:00:52.960 grand jury by the prosecutor, Lindsay Halligan, the use of 0:00:53.040 --> 0:00:59.680 potentially privileged communications during the investigation, and unexplained irregularities in 0:00:59.720 --> 0:01:03.080 the tree transcript of the grand jury proceedings. My guest 0:01:03.120 --> 0:01:08.320 is former federal prosecutor Robert Mintz, a partner maccarter in English, Bob. 0:01:08.440 --> 0:01:12.400 In some ways, the judge's opinion seems like a guideline 0:01:12.480 --> 0:01:15.640 for the defense to ask for a dismissal of the indictment. 0:01:16.120 --> 0:01:20.160 He outlined the procedural and substance of irregularities that occurred 0:01:20.160 --> 0:01:23.200 before the grand jury, and said they may give comby 0:01:23.319 --> 0:01:27.280 legal grounds to have one or more of the counts dismissed. 0:01:27.920 --> 0:01:30.760 Pretty harsh a condemnation of the government's actions. 0:01:31.640 --> 0:01:36.200 It was extremely unusual because, as you say, it's extremely 0:01:36.400 --> 0:01:39.560 rare in the first place, for a judge to be 0:01:39.720 --> 0:01:43.080 reviewing conduct in front of a grand jury. The grand 0:01:43.160 --> 0:01:47.680 jury process, even though it's a very important constitutional right, 0:01:48.200 --> 0:01:50.960 and the prosecutor does not have a basis to charge 0:01:50.960 --> 0:01:54.280 an individual with a federal crime if it's a felony, 0:01:54.320 --> 0:01:57.040 it's something that has to go before a grand jury 0:01:57.080 --> 0:01:59.240 and there has to be a finding of probable cause. 0:01:59.640 --> 0:02:03.040 But there the reality is, as a federal prosecutor, that 0:02:03.320 --> 0:02:06.880 is really most of the time just a formality. It's 0:02:07.000 --> 0:02:11.320 extremely rare, almost unheard of, for grand jurors to refuse 0:02:11.720 --> 0:02:15.200 to return an indictment when a federal prosecutor presents a 0:02:15.280 --> 0:02:17.080 case in front of a grand jury. 0:02:17.360 --> 0:02:18.000 So when you're a. 0:02:17.919 --> 0:02:20.799 Federal prosecutor, the last thing in the world you want 0:02:21.240 --> 0:02:23.600 is for a judge to be probing what went on 0:02:23.720 --> 0:02:27.480 in that grand jury process. That means that as a prosecutor, 0:02:27.680 --> 0:02:30.560 you're on the defense, and instead of talking about the 0:02:30.680 --> 0:02:34.480 charges that you're bringing against the defendant, you are defending 0:02:34.520 --> 0:02:37.520 your own conduct. And that's exactly what's happened here. 0:02:38.200 --> 0:02:42.440 Judge Fitzpatrick cited eleven potential missteps in the process to 0:02:42.520 --> 0:02:46.760 obtain the indictment against Komi. So let's start with the 0:02:46.760 --> 0:02:52.040 defense is challenging whether there was privileged information used, and 0:02:52.160 --> 0:02:55.280 the judge said the facts established a reasonable basis for 0:02:55.320 --> 0:03:00.279 the defense to challenge whether privileged information was used directly 0:03:00.440 --> 0:03:04.119 or indirectly by the government to prepare and present its 0:03:04.200 --> 0:03:07.640 grand jury presentation. So you have to go back a little, 0:03:07.639 --> 0:03:11.000 I guess to explain, you know, why there's privileged information here. 0:03:11.520 --> 0:03:14.680 So what the magistrate judge was tasked with in this 0:03:14.840 --> 0:03:18.680 circumstance was to decide whether mister Komy had met the 0:03:18.880 --> 0:03:21.760 very high bar for a defendant to be given full 0:03:21.840 --> 0:03:26.040 access to the transcripts and recordings of a grand jury proceeding. 0:03:26.720 --> 0:03:29.200 What ended up happening here was that, in addition to 0:03:29.280 --> 0:03:33.040 the reasons that Comy's lawyers had argued for access to 0:03:33.080 --> 0:03:36.240 the grand jury material, the judge found from his own 0:03:36.280 --> 0:03:39.920 review of the materials a host of new problems new 0:03:39.960 --> 0:03:43.280 issues that could ultimately lead to the dismissal of the case. 0:03:43.640 --> 0:03:48.360 The judge went through a series of potential issues that 0:03:48.440 --> 0:03:52.000 he decided the defense was entitled to probe and to 0:03:52.200 --> 0:03:55.720 raise before the court as a basis to possibly dismiss 0:03:55.760 --> 0:03:59.440 the indictment. One of the original issues that Comy's lawyers 0:03:59.560 --> 0:04:03.720 raise a basis for accessing the grand jury material had 0:04:03.760 --> 0:04:07.000 to do with search warrants that were executed by the 0:04:07.040 --> 0:04:11.080 Department of Justice in twenty nineteen and twenty twenty four. 0:04:11.200 --> 0:04:14.560 Search warrants were executed by the Department of Justice in 0:04:14.560 --> 0:04:19.280 connection with an entirely separate, earlier investigation owned as Artikades, 0:04:19.720 --> 0:04:23.599 which took place during President Trump's first presidency and had 0:04:23.640 --> 0:04:27.360 to do with the potential leaking of information to the 0:04:27.440 --> 0:04:32.159 media about ongoing investigations by the FBI, and the search 0:04:32.240 --> 0:04:36.080 warrants were focused on a Columbia University law professor, Daniel Richman, 0:04:36.400 --> 0:04:38.960 who was a friend of mister Comy's but who would 0:04:39.000 --> 0:04:42.560 also end up representing him as his lawyer for some 0:04:42.720 --> 0:04:46.000 period of time, and that created the question of whether 0:04:46.080 --> 0:04:48.839 or not the information might have been covered by the 0:04:48.880 --> 0:04:53.040 attorney client privilege. The judge here raised a number of 0:04:53.080 --> 0:04:55.320 issues as to whether or not there could have been 0:04:55.360 --> 0:04:58.440 a violation of mister Comy's rights and whether or not 0:04:58.560 --> 0:05:03.520 privileged information, in other words, communications between mister Comy and 0:05:03.600 --> 0:05:06.760 mister Richmond when mister Richmond was acting as his lawyer 0:05:07.160 --> 0:05:10.600 might have seeped into the grand jury presentation and that 0:05:10.640 --> 0:05:13.479 would have been entirely improper and would have tainted the 0:05:13.480 --> 0:05:17.040 presentation and could potentially be a basis to dismiss the indictment. 0:05:17.760 --> 0:05:20.600 Yeah, the judge said that the decision to allow an 0:05:20.760 --> 0:05:23.839 FBI agent, and there was only one witness in the 0:05:23.880 --> 0:05:26.719 grand jury, it was an FBI agent. So the decision 0:05:26.760 --> 0:05:29.880 to allow an agent who was exposed to potentially privileged 0:05:29.960 --> 0:05:34.800 information to testify before a grand jury is highly irregular 0:05:35.120 --> 0:05:38.960 and a radical departure from past DOJ practice. 0:05:39.680 --> 0:05:42.520 Yeah, And what the judge meant by that is there 0:05:42.560 --> 0:05:46.159 are circumstances when the issue of privilege does arise, and 0:05:46.200 --> 0:05:49.760 typically it will happen if there is a search warrant 0:05:49.920 --> 0:05:53.760 that takes place involving an attorney. You know by definition 0:05:54.120 --> 0:05:57.159 that there may be communications between an attorney and his 0:05:57.360 --> 0:06:00.400 client when you search an attorney's office. And so what 0:06:00.440 --> 0:06:04.039 prosecutors do on a routine basis is they set up 0:06:04.080 --> 0:06:06.760 a separate team of lawyers, lawyers who are not in 0:06:06.800 --> 0:06:10.719 any way involved in the prosecution, who will go through 0:06:10.760 --> 0:06:15.640 that material to remove what could be potentially privileged information 0:06:16.120 --> 0:06:19.279 so that the trial team, the prosecuting team, is not 0:06:19.440 --> 0:06:22.880 tainted by having access to information that they should not 0:06:23.000 --> 0:06:26.640 be given access to. What happened here was that one 0:06:26.640 --> 0:06:30.000 of the FBI agents, who by the government's own admission, 0:06:30.440 --> 0:06:33.520 had been given a briefing at least on some of 0:06:33.560 --> 0:06:37.680 the privileged information, that was the sole witness who appeared 0:06:37.720 --> 0:06:40.200 in front of the grand jury in order to return 0:06:40.240 --> 0:06:44.200 the indictment. In order to return indictments, prosecutors do not 0:06:44.440 --> 0:06:47.920 have to present witnesses who have first hand knowledge about 0:06:47.960 --> 0:06:52.560 the Alleyish crime. They can, and often do, rely on 0:06:52.560 --> 0:06:56.040 one agent who was allowed to summarize and present hearsay 0:06:56.080 --> 0:06:59.120 evidence to the grand jury, to summarize all of the 0:06:59.120 --> 0:07:02.640 government's case, including all the interviews that might have taken place, 0:07:02.880 --> 0:07:07.160 reviews of documents, basically sum up for the jury or 0:07:07.200 --> 0:07:10.280 of the government's case through the testimony of a single 0:07:10.320 --> 0:07:14.400 witness hear What the judge found potentially problematic was that 0:07:14.400 --> 0:07:19.000 that single witness was somebody who had access to privileged information, 0:07:19.320 --> 0:07:22.520 and the question is did any of that information, either 0:07:22.560 --> 0:07:27.400 directly or indirectly seep into the presentation before the grand jury. 0:07:27.440 --> 0:07:30.080 If that happened, it was improper and could be a 0:07:30.120 --> 0:07:31.480 serious problem for the government. 0:07:32.200 --> 0:07:35.680 I've been talking to former federal prosecutor Robert Mintz, a 0:07:35.840 --> 0:07:39.600 partner Macarter in English. So Bob the prosecutor here. The 0:07:39.720 --> 0:07:44.720 interim US attorney Lindsay Halligan was Trump's former personal lawyer, 0:07:45.440 --> 0:07:48.880 had never been a prosecutor before, and she was hastily 0:07:49.840 --> 0:07:53.800 installed in the position. She presented the case to the 0:07:53.840 --> 0:07:56.960 grand jury by herself. She was the only one in 0:07:56.960 --> 0:08:00.360 the room with the grand jurors because the experience against 0:08:00.360 --> 0:08:03.320 prosecutors in the office. Didn't want to have anything to 0:08:03.360 --> 0:08:07.280 do with this indictment, and Judge Fitzpatrick found that two 0:08:07.400 --> 0:08:12.920 different comments Halligan made to the grand jurors represented fundamental 0:08:13.120 --> 0:08:17.360 misstatements of the law, and her exact comments were redacted 0:08:17.360 --> 0:08:21.000 from the judge's order. But it appears that she suggested 0:08:21.080 --> 0:08:24.640 to the grand jury that the fact that Comy didn't 0:08:24.720 --> 0:08:29.280 testify in his defense should be interpreted as a sign 0:08:29.400 --> 0:08:33.920 of guilt. I find that stunning, because any lawyer, even 0:08:33.920 --> 0:08:37.359 a first year law student, should know that a defendant 0:08:37.440 --> 0:08:41.120 doesn't have to testify. It's a right guaranteed by the 0:08:41.160 --> 0:08:44.760 Fifth Amendment and no inference can be drawn from that. 0:08:45.400 --> 0:08:49.360 Well, that's exactly right. And the magistrate judge described these 0:08:49.520 --> 0:08:54.480 as quote fundamental misstatements of law by the prosecutor in 0:08:54.480 --> 0:08:57.080 front of the grand jury. And one of the issues 0:08:57.120 --> 0:08:59.760 that he identified was this Fifth Amendment right. 0:08:59.800 --> 0:09:00.240 Ishue you. 0:09:00.440 --> 0:09:03.640 Apparently, during the course of the grand jury in presentation, 0:09:04.240 --> 0:09:08.080 a grandeuror raised questions, as grandeur is often due to 0:09:08.160 --> 0:09:11.560 the prosecutor, and the prosecutor has to respond with the 0:09:11.640 --> 0:09:14.880 proper law in order to give the grand jurors the 0:09:14.920 --> 0:09:17.320 framework by which to consider whether or not to return 0:09:17.360 --> 0:09:21.320 an indictment. Here, apparently a grandeuror asked a question, and 0:09:21.360 --> 0:09:25.160 as you say, the exact response has been redacted. But 0:09:25.240 --> 0:09:30.040 according to the Magistrate judge, it suggested that mister Comy 0:09:30.360 --> 0:09:34.120 may have had a burden to explain away the government's evidence. 0:09:34.120 --> 0:09:37.680 In other words, the inference was that the burden shifted 0:09:37.720 --> 0:09:41.120 to mister Comy to have to explain why he did 0:09:41.160 --> 0:09:44.240 what he did, when in fact, under the Fifth Amendment, 0:09:44.440 --> 0:09:48.400 a defendant has no obligation whatsoever to testify, and the 0:09:48.520 --> 0:09:52.160 fact that they choose not to testify cannot be used 0:09:52.200 --> 0:09:56.040 against him. And more fundamentally, in a criminal prosecution, the 0:09:56.120 --> 0:09:59.880 burden never shifts to the defense. It's always the prosecution's 0:10:00.559 --> 0:10:03.360 to prove its case beyond a reasonable doubt. So any 0:10:03.480 --> 0:10:08.240 suggestion that mister Comi's decision not to testify, not to 0:10:08.360 --> 0:10:12.720 explain away his conduct could somehow be used by grand 0:10:12.800 --> 0:10:15.880 jurors to infer that he committed a crime would have 0:10:15.880 --> 0:10:19.960 been improper. The judge also noted that Miss Halligan may 0:10:20.000 --> 0:10:23.000 have suggested to the grand jury that they did not 0:10:23.200 --> 0:10:26.120 have to rely only on the record that was presented 0:10:26.160 --> 0:10:29.400 to them during the grand jury presentation in order to 0:10:29.440 --> 0:10:32.240 reach a finding of whether or not there was probable cause, 0:10:32.600 --> 0:10:35.200 but that they could assume and they could be assured 0:10:35.240 --> 0:10:38.160 of the fact that the government had even more evidence, 0:10:38.200 --> 0:10:42.640 perhaps better evidence, than was presented to them during the presentation, 0:10:43.040 --> 0:10:45.760 that could be used at trial, and therefore that the 0:10:45.800 --> 0:10:48.840 case was even stronger than the evidence presented to them 0:10:48.920 --> 0:10:52.000 during the grand jury proceeding. If that was done, that 0:10:52.120 --> 0:10:55.280 too would be entirely improper. The grand jury has to 0:10:55.320 --> 0:10:57.599 make a decision as to whether or not there is 0:10:57.720 --> 0:11:01.520 probable cause based solely on the evidence presented to them 0:11:01.720 --> 0:11:04.880 during the grand jury proceeding. It's really no different than 0:11:04.880 --> 0:11:07.520 a trial in which jurors have to make a determination 0:11:07.960 --> 0:11:09.760 as to whether or not the government has met its 0:11:09.760 --> 0:11:12.640 burden of proof beyond a reasonable doubt based solely on 0:11:12.720 --> 0:11:15.920 the evidence that's presented to them during the trial. They 0:11:15.960 --> 0:11:20.040 can't rely on anything outside of the record during the 0:11:20.080 --> 0:11:23.959 trial proceeding. The same holds true for a grand jurors, 0:11:24.200 --> 0:11:27.040 and for a prosecutor to just suggest that there is 0:11:27.160 --> 0:11:30.839 other more powerful evidence that they should consider but has 0:11:30.880 --> 0:11:33.439 not been presented to them would be entirely improper. 0:11:34.120 --> 0:11:37.760 I mean her comments basically come down to a defendant 0:11:37.840 --> 0:11:41.760 has to testify before a grand jury, and trust me, 0:11:41.920 --> 0:11:45.040 grand jurors, we have a lot more evidence that will 0:11:45.120 --> 0:11:47.920 prove his guilt, but we're not showing it to you now. 0:11:48.280 --> 0:11:51.640 Well, I think that's why you saw the opinion written 0:11:51.679 --> 0:11:55.400 by the magistrate judge to be as strongly worded at 0:11:55.440 --> 0:11:57.880 as detailed as it was. It was a twenty four 0:11:57.960 --> 0:12:02.120 page opinion that went not only the issues that mister 0:12:02.200 --> 0:12:04.720 Comey's lawyers had raised in order to try to gain 0:12:04.800 --> 0:12:08.760 access to the grand jury transcripts, but also a litany 0:12:08.880 --> 0:12:13.000 of other issues that he discovered when he reviewed in 0:12:13.160 --> 0:12:17.079 camera those grand jury transcripts, and he raised serious questions 0:12:17.120 --> 0:12:19.440 in his mind, I believe as to whether or not 0:12:19.520 --> 0:12:23.520 there were serious constitutional errors in the presentation, not only 0:12:23.520 --> 0:12:26.319 the Fifth Amendment question, not only the question that there 0:12:26.360 --> 0:12:28.880 was evidence outside of the grand jury's purview that they 0:12:28.880 --> 0:12:32.800 should consider. Even the way the grand jury returned the indictment. 0:12:33.120 --> 0:12:35.960 In this case, the original indictment presented to the Grand 0:12:36.040 --> 0:12:39.360 jurors was a three count indictment. When the Grand jurors 0:12:39.400 --> 0:12:42.880 went back to deliberate, they chose not to return a 0:12:42.920 --> 0:12:45.959 true bill, which means they voted not in favor of 0:12:46.080 --> 0:12:49.080 one of the three counts. And now there's a question, 0:12:49.400 --> 0:12:52.280 based on the transcript of the proceeding, as to whether 0:12:52.360 --> 0:12:55.800 or not an entirely new indictment with only the two 0:12:55.920 --> 0:12:58.600 counts that the Grand jurors voted in favor of, was 0:12:58.640 --> 0:13:01.520 ever presented to them. If that did not happen, if 0:13:01.520 --> 0:13:05.439 the Grand jurors did not deliberate on the exact indictment 0:13:05.480 --> 0:13:08.240 that was ultimately presented to the court, that is another 0:13:08.280 --> 0:13:09.960 issue that could be very problematic. 0:13:10.679 --> 0:13:14.319 I was impressed that the magistrate judge figured out by 0:13:14.360 --> 0:13:18.079 the timing of what happened that he thinks the grand 0:13:18.160 --> 0:13:22.760 jurors did not review the indictment that was finally presented 0:13:22.760 --> 0:13:25.160 in open court. Now, that's exactly. 0:13:24.880 --> 0:13:28.200 Right, the judge wrote. If the prosecutor is mistaken about 0:13:28.240 --> 0:13:31.640 the time she received notification of the grand jury's vote 0:13:31.640 --> 0:13:34.800 on the original indictment, and this procedure did take place, 0:13:35.040 --> 0:13:38.280 then the transcript and audio recording provided to the court 0:13:38.360 --> 0:13:41.480 are incomplete. On the other hand, if this procedure did 0:13:41.480 --> 0:13:44.480 not take place, then the court is in what the 0:13:44.559 --> 0:13:48.960 judge described as uncharted legal territory in that the indictment 0:13:49.000 --> 0:13:52.240 returned in open court was not the same charging document 0:13:52.559 --> 0:13:56.640 presented to and deliberated upon by the grand jury. Either way, 0:13:57.120 --> 0:14:01.120 the judge was not satisfied with the explanation prosecutors gave 0:14:01.480 --> 0:14:05.360 about that process, and that's why the magistrate judge at 0:14:05.440 --> 0:14:08.320 least has decided to open up all of this grand 0:14:08.360 --> 0:14:12.520 jury information to the defense, which is a huge benefit 0:14:12.559 --> 0:14:15.560 to the defense and will likely result in even more 0:14:15.679 --> 0:14:19.080 motions than the original motions filed by mister Comy's defense team. 0:14:19.600 --> 0:14:22.640 Bob I was wondering so the judge said that all 0:14:22.640 --> 0:14:26.080 the grand jury materials that the government filed under seal 0:14:26.200 --> 0:14:30.000 have to be made available to Comy's lawyers, and also 0:14:30.120 --> 0:14:34.480 the audio recording of the grand jury proceedings. Could the 0:14:34.600 --> 0:14:39.000 audio recording reveal things that are not in the transcript. 0:14:38.920 --> 0:14:40.240 Yeah, that's certainly possible. 0:14:40.320 --> 0:14:43.760 I mean, the judge here decided to go full transparency 0:14:43.880 --> 0:14:46.920 and that he is giving everything that was presented to 0:14:47.000 --> 0:14:50.840 him by the government over to the defense, and that 0:14:51.000 --> 0:14:53.880 is something that you rarely see. As I said, this 0:14:53.960 --> 0:14:57.680 is something that is a prosecutor's nightmare. The case should 0:14:57.720 --> 0:15:01.320 not be about the prosecutor's con right out of the gate. 0:15:01.400 --> 0:15:04.600 It should be about the defendant's conduct and about whether 0:15:04.720 --> 0:15:07.240 or not the government can prove that the defendant committed 0:15:07.240 --> 0:15:10.440 a crime beyond a reasonable doubt. The probe into the 0:15:10.720 --> 0:15:13.600 conduct by the government is exactly where you want to 0:15:13.600 --> 0:15:15.920 be if you're on the defense side. But it's the 0:15:15.920 --> 0:15:18.360 worst place you can possibly be as a prosecutor. 0:15:18.720 --> 0:15:23.440 So federal prosecutors within a few hours filed an emergency 0:15:23.520 --> 0:15:26.400 request to the judge in the case we're talking about 0:15:26.400 --> 0:15:30.320 the magistrate judges order, saying that the magistrate judge's new 0:15:30.440 --> 0:15:34.480 order is contrary to law, and also that he may 0:15:34.560 --> 0:15:36.880 have misinterpreted some facts. 0:15:37.560 --> 0:15:37.720 Well. 0:15:37.720 --> 0:15:41.800 I think what's happened here is magistrate judges are appointed 0:15:42.160 --> 0:15:44.760 by the court that they serve in and their decisions 0:15:44.880 --> 0:15:48.160 generally can be appealed to the district court judge handling 0:15:48.200 --> 0:15:52.600 the case. And so the government not surprisingly immediately sought 0:15:52.600 --> 0:15:56.480 to stay, and the district court judge, I think wisely 0:15:56.640 --> 0:15:59.680 granted it so that he can review everything that went 0:15:59.720 --> 0:16:02.080 on and review not only what went on in the 0:16:02.080 --> 0:16:05.440 grand jury, but carefully review the twenty four page decision 0:16:05.640 --> 0:16:08.520 that was issued by the magistrate judge, and he will 0:16:08.520 --> 0:16:11.320 make his own decisions about whether or not this grand 0:16:11.400 --> 0:16:14.440 jury material should be turned over. It's so important and 0:16:14.480 --> 0:16:17.360 it's so unusual that it's not at all surprising to 0:16:17.480 --> 0:16:20.000 me that the district court judge wants to weigh in 0:16:20.080 --> 0:16:22.320 on this before a final decision is made. 0:16:22.760 --> 0:16:26.840 The magistrate judge works in tandem with the district court judge, 0:16:26.840 --> 0:16:31.120 so Judge Macimuff probably knows what the magistrate judge was doing. 0:16:32.040 --> 0:16:36.600 Dor What happens is that magistrate judges are selected by 0:16:36.640 --> 0:16:39.360 the court, as opposed to district court judges, which are 0:16:39.400 --> 0:16:42.200 nominated by the President and only appointed with the advice 0:16:42.240 --> 0:16:46.320 and consent of the Senate. The magistrate judges essentially work 0:16:46.440 --> 0:16:51.560 with specific district court judges, and generally, on the civil side, 0:16:51.640 --> 0:16:55.000 they handle a lot of the discovery matters that lead 0:16:55.120 --> 0:16:58.360 up to trial. On the criminal side, they hear initial 0:16:58.400 --> 0:17:01.360 hearings with regard to bail and issues of that sort. 0:17:01.640 --> 0:17:04.879 But they do work hand in glove with the judges 0:17:05.160 --> 0:17:09.200 that they are assigned to, So typically you will see 0:17:09.240 --> 0:17:12.560 a district court judge agreeing with much of what their 0:17:12.600 --> 0:17:15.520 magistrate judge did. But in this case, I think there's 0:17:15.520 --> 0:17:19.560 no question that Judge Nachmanoff will take a separate look 0:17:19.640 --> 0:17:22.840 at what happened here because it is so unusual, and 0:17:22.920 --> 0:17:26.280 make his own decision about whether the grand jury material 0:17:26.520 --> 0:17:29.080 should be turned over in total as was ordered by 0:17:29.119 --> 0:17:30.240 the magistrate judge. 0:17:30.320 --> 0:17:33.920 So Judge Nachmanoff put Fitzpatrick's order on hold. He gave 0:17:33.960 --> 0:17:37.640 the Justice Department until five pm tomorrow to file its 0:17:37.680 --> 0:17:40.960 full brief and then Comy side has until five pm 0:17:41.040 --> 0:17:45.840 Friday to respond. So now yet another judge is involved 0:17:46.119 --> 0:17:50.000 in this case, and that's the judge considering whether Lindsey 0:17:50.080 --> 0:17:55.600 Halligan was lawfully appointed. Let's once again explain what the 0:17:55.640 --> 0:17:58.359 defense's argument about Halligan's appointment. 0:17:59.200 --> 0:18:02.159 So, in this case, the federal judge is actually a 0:18:02.280 --> 0:18:05.880 judge from South Carolina as opposed to the Eastern District 0:18:05.880 --> 0:18:09.280 of Virginia. Because the question before the court is whether 0:18:09.359 --> 0:18:11.960 or not the US Attorney for the Eastern District of 0:18:12.040 --> 0:18:16.040 Virginia has been properly appointed, and the decision was made 0:18:16.240 --> 0:18:18.680 by the Circuit Court, that'd be best to have a 0:18:18.800 --> 0:18:22.640 judge not in that judicial district making this decision. So 0:18:22.680 --> 0:18:25.920 the judge from South Carolina, to Judge Curry, is looking 0:18:26.080 --> 0:18:30.440 at the convoluted process by which Lindsay Halligan was appointed 0:18:30.840 --> 0:18:34.400 as the interim US Attorney for the Eastern District of Virginia. 0:18:34.840 --> 0:18:38.560 There had been a career prosecutor who was appointed by 0:18:38.680 --> 0:18:42.520 President Trump to serve on an interim basis. That interim 0:18:42.560 --> 0:18:46.040 basis lasts one hundred and twenty days by appointment of 0:18:46.080 --> 0:18:49.760 the President. After that time period, the judges in the 0:18:49.800 --> 0:18:53.040 district can then extend that appointment. And that's exactly what 0:18:53.160 --> 0:18:57.280 happened here with that career prosecutor, Eric Sebert. The Attorney 0:18:57.359 --> 0:19:00.600 General then fired mister Siebert and appoint did a new 0:19:00.640 --> 0:19:04.280 prosecutor Lindsay Halligan for a new one hundred and twenty 0:19:04.359 --> 0:19:07.840 day period, and the question is whether or not the 0:19:07.920 --> 0:19:11.440 Executive Branch can continue with these one hundred and twenty 0:19:11.520 --> 0:19:16.200 day interim appointments sort of add infinitum, or whether they 0:19:16.200 --> 0:19:18.960 can do it only one time and after that time 0:19:19.200 --> 0:19:21.800 it's up to the district court judges to appoint the 0:19:21.920 --> 0:19:26.240 US attorney. The statute is actually not clear on the process. 0:19:26.520 --> 0:19:29.120 It doesn't explicitly say that that one hundred and twenty 0:19:29.200 --> 0:19:33.000 day appointment can happen only once. But the argument by 0:19:33.040 --> 0:19:35.600 the defense here is if the court were to accept 0:19:35.600 --> 0:19:39.040 the government's argument, then the President could really get around 0:19:39.119 --> 0:19:41.919 the advice and consent of the Senate which is required 0:19:42.200 --> 0:19:45.119 for a US attorney, by simply doing a series of 0:19:45.160 --> 0:19:47.920 one hundred and twenty day appointments over and over again, 0:19:48.200 --> 0:19:50.840 and that could not be what Congress intended. 0:19:51.320 --> 0:19:56.280 The Justice Department's response to the argument that Lindsay Halligan 0:19:56.560 --> 0:20:01.439 was not lawfully appointed dismissed any missteps here, saying the 0:20:01.480 --> 0:20:05.680 administration may have made quote at best, a paperwork error, 0:20:06.040 --> 0:20:11.040 and also that afterwards the grand jury presentations have been 0:20:11.080 --> 0:20:15.399 reviewed and ratified by Attorney General Pam Bondy, the Justice 0:20:15.400 --> 0:20:18.840 Department is trying to say, even if we made a mistake, 0:20:19.440 --> 0:20:22.600 Pam Bondy looked at it later and approved it. But 0:20:22.680 --> 0:20:25.080 the judge did not seem too convinced by that. 0:20:25.440 --> 0:20:28.560 These are all very unusual questions and in very unusual 0:20:28.600 --> 0:20:32.000 proceedings that there really is no prior precedent for. So 0:20:32.080 --> 0:20:34.800 it's going to be interesting to see how the courts 0:20:34.840 --> 0:20:38.040 treat not only her appointment, but the efforts by the 0:20:38.080 --> 0:20:41.760 Attorney General. In an effort to prop up Halligan's position, 0:20:42.040 --> 0:20:45.920 Attorney General Bondi designated Halligan as a special attorney for 0:20:45.960 --> 0:20:49.920 the Justice Department, assigned to oversee cases against former FBI 0:20:50.000 --> 0:20:53.360 Director James Comey and New York Attorney General Letitia James. 0:20:53.640 --> 0:20:56.960 So what you're seeing is the Department of Justice kind 0:20:57.000 --> 0:21:00.439 of struggling here to not only prop up the position 0:21:00.480 --> 0:21:03.840 of Lindsay Halligan, but also to try to convince the 0:21:03.880 --> 0:21:07.080 court that any errors that were made in connection with 0:21:07.240 --> 0:21:10.399 obtaining the indictment against James Comy was more of a 0:21:10.440 --> 0:21:13.960 paperwork issue and nothing that should result in dismissal of 0:21:13.960 --> 0:21:14.520 the indictment. 0:21:15.200 --> 0:21:18.840 If she decides that Lindsay Halligan was not qualified and 0:21:18.880 --> 0:21:23.439 there was no ratification so to speak by Attorney General 0:21:23.480 --> 0:21:26.760 Pam Bondi, does the case against Comy then go out 0:21:26.800 --> 0:21:29.560 the window because of the Statute of limitations. 0:21:29.960 --> 0:21:32.919 One of the interesting questions that will arise in the 0:21:33.000 --> 0:21:36.959 event that the court were to determine that Lindsay Halligan's 0:21:37.000 --> 0:21:40.360 appointment was improper is whether or not the government will 0:21:40.359 --> 0:21:44.280 have the ability to reindict the case. The case was 0:21:44.320 --> 0:21:47.560 indicted right at the very end of the five year 0:21:47.640 --> 0:21:51.480 statute limitations. That's why Lindsay Halligan rushed into the grand 0:21:51.520 --> 0:21:55.560 jury on very short notice and made this presentation literally 0:21:55.680 --> 0:21:58.920 days before the five year statute of limitations was set 0:21:58.960 --> 0:22:02.919 to expire. If her appointment is deemed to be improper, 0:22:03.280 --> 0:22:07.240 that would mean that the indictment itself is procedurely flawed 0:22:07.560 --> 0:22:10.400 because somebody who was not properly appointed as a US 0:22:10.440 --> 0:22:14.040 attorney was the only person who presented the case before 0:22:14.080 --> 0:22:17.520 the grand jury. The defense will no doubt argue that 0:22:17.560 --> 0:22:20.800 the government cannot seek to reindict the case because the 0:22:20.840 --> 0:22:24.560 statutal limitations will have since expired. But there is a 0:22:24.560 --> 0:22:28.240 statute that says if a case is dismissed on procedural grounds, 0:22:28.400 --> 0:22:33.080 which may include potentially a situation like this where the 0:22:33.160 --> 0:22:35.200 attorney who presented the case in front of the grand 0:22:35.240 --> 0:22:39.840 jury was not appropriately appointed, that the government has a 0:22:40.000 --> 0:22:44.280 six month grace period to refile that new indictment even 0:22:44.320 --> 0:22:47.800 though the original five year statual limitations has passed. That 0:22:47.840 --> 0:22:50.680 will be something that will be front and center if 0:22:50.800 --> 0:22:54.760 Lindsay Halligan's appointment is ultimately ruled to be improper and 0:22:54.840 --> 0:22:58.280 the government attempts to refile that indictment outside the five 0:22:58.359 --> 0:22:59.560 year statue limitations. 0:23:00.200 --> 0:23:04.080 This case raises so many novel questions. Thanks so much 0:23:04.080 --> 0:23:07.320 for exploring them with US Bob. That's Robert Mintz of 0:23:07.400 --> 0:23:12.480 Macarter and English Today. A panel of federal judges shot 0:23:12.560 --> 0:23:17.520 down Texas's rare mid decade redistricting, delivering the loss to 0:23:17.600 --> 0:23:20.679 President Trump in a two to one vote. The panel 0:23:20.760 --> 0:23:25.200 blocked Texas from using a redrawn US House map, saying 0:23:25.240 --> 0:23:30.440 that substantial evidence shows that Texas racially gerrymander the twenty 0:23:30.480 --> 0:23:34.159 twenty five map. A Trump appointee and a Biden appointee 0:23:34.200 --> 0:23:38.240 we're in the majority, and a Reagan appointee in the minority. 0:23:38.280 --> 0:23:41.639 This closes a path for Republicans to gain five House 0:23:41.680 --> 0:23:45.879 seats in next year's midterm elections unless the Supreme Court 0:23:46.000 --> 0:23:50.359 steps in and reverses the decision, But the timeline is tight. 0:23:50.960 --> 0:23:54.080 Joining me is Ryan Attulo, who covers Texas courts for 0:23:54.119 --> 0:23:57.399 Bloomberg Law. Ryan tell us why the judges blocked the 0:23:57.440 --> 0:23:58.040 new map. 0:23:58.600 --> 0:24:03.320 The panel says that the maps that Texas drew this 0:24:03.440 --> 0:24:09.119 summer racially discriminated against minority groups. It was a decision 0:24:09.640 --> 0:24:14.800 that criticized heavily a letter from the Department of Justice 0:24:15.359 --> 0:24:19.120