# Trump Wants $230 Million & James Comey's Defense

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 23 Oct 2025, 32 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/2d12cf8e-9809-4ecf-b6fe-b37f001cf13a/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law discusses President Trump seeking $230 million from the Justice Department and appellate arguments over the appointment of Alina Habba, his former lawyer, as New Jersey’s top prosecutor. Abbe Smith, director of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law, discusses former FBI director James Comey’s motions to dismiss the charges against him. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

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

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