'If You Can Keep It': James Comey And The Justice Department

17:58James Comey:attorney's office, the prosecutors responsible for the investigation will put together a prosecution memo, and it will outline all of the facts that they developed through the investigation, the sources of those facts, and whether those sources are admissible evidence, right? Is it a real live witness with percipient factual knowledge who can testify, or is it some hearsay that's not going to be admissible and we need to find some other evidence for it? That memo will also talk about the exculpatory evidence, the evidence suggesting the person did not commit the crime, or even what's called inculpatory evidence, which would be evidence that suggests that one of the witnesses has some bias or some baggage or something that would make that witness not credible at trial.

18:42James Comey:The prosecution then assesses, can we meet every, can we prove every element of the criminal offense that we're seeking to charge beyond a reasonable doubt when we go to trial? Now, it's true. When you go in the grand jury, the standard is lower, mere probable cause that a crime has been committed. And that may be why they eked out enough votes for two of the three counts sought here. One, they didn't even eke out enough votes. You only needed 12 and they didn't get them. The other two counts, they got 14 votes. And it could be because it was that lower standard. But as a prosecutor, you don't go even into the grand jury just thinking, I think I can meet probable cause.

19:20James Comey:I'm not so sure about beyond a reasonable doubt. You need to think you've got, believe you have admissible evidence at the end of the day to go to trial and prove your case beyond a reasonable doubt.

19:28Joshua Johnson:And in this case, Mary, tell me if this is wrong. Ultimately, they would have to prove that Jim Comey knew that he had authorized the leak. He remembered authorizing the leak. Then when he was asked about it, he said, I'm going to lie about authorizing the leak, and I know that's false, right?

19:46James Comey:That's right. And you would also have to prove that that false statement was material to the proceeding. And that's another question here, because in 2020, and Glenn can correct me if I'm wrong, I believe what Congress was investigating was sort of the Russia investigation. These statements, at least based on our speculation about what he was being asked about, was about a leak about whether the FBI was investigating Hillary Clinton and the Clinton Foundation. Those things are not actually related.

20:14Joshua Johnson:So we're going to hear about materiality going forward. Tommy wants to say, how long will it take for the Comey indictment to reach a courtroom, Mary?

20:23James Comey:So I believe the first appearance is October 9th. That's when the judge will say, how do you plead, guilty or not guilty? And obviously we expected that Mr. Comey will plead not guilty. They will set up then a schedule with filing any pretrial motions and possibly even set a trial date. We know Mr. Comey has been very public about saying, let's get to trial and let's get to trial quickly. And he certainly has a right to request that. I would also say, though, I think he has some very strong arguments to move to dismiss this prosecution on the grounds that is vindictive, selective, and a due process violation because we have such unbelievable transparency from the president in his direction to his Department of Justice to do this.

21:06James Comey:I mean, it's very interesting because it's not like it's something that Trump hides, but it really does show his animosity.

21:11Joshua Johnson:Well, last week, White House Press Secretary Carolyn Levitt defended President Trump's recent actions going after James Comey in public and in private. The president is fulfilling his promise to restore a Department of Justice that demands accountability. And it is not weaponizing the Department of Justice to demand accountability for those who weaponize the Department of Justice. And nobody knows what that looks like more than President Trump. We are not going to tolerate gaslighting from anyone in the media or from anyone on the other side who is trying to say that it's the president who is weaponizing the DOJ.

21:47Joshua Johnson:It was Joe Biden and his attorney general who weaponized the DOJ. And here's more from the president himself. They weaponized the Justice Department like nobody in history. What they've done is terrible. And so I would I hope there are frankly, I hope there are this because you can't let this happen to a country. Anne emails to say, I worked at DOJ for more than five years in criminal civil rights. This is a horrible low in every way imaginable. How is this not far worse than the president's allegation about weaponization during the past and in the Biden administration? Well, so far, we've been talking about how the DOJ is treating Donald Trump's enemies.

22:27Joshua Johnson:Let's talk about how it's treating his friends. Earlier this year, the Justice Department was looking into allegations that Borders are Tom Homan, accepted a$50 ,000 bribe, allegedly. Reporters who viewed DOJ summaries report that Homan was recorded taking the money and that investigators say he agreed to help steal government contracts to people he thought were business executives. And we also learned that over the summer, the FBI and the DOJ shut down that investigation into Tom Homan. Now, White House Press Secretary Carolyn Levitt addressed the allegations last week. Mr. Homan never took the$50 ,000 that you're referring to, so you should get your facts straight, number one.

23:09Joshua Johnson:Number two, this was another example of the weaponization of the Biden Department of Justice against one of President Trump's strongest and most vocal supporters. Now, keep that statement in your mind, Mr. Homan never took the$50 ,000. And then listen to Tom Homan himself later on that same day on Fox News. I did nothing criminal. I did nothing illegal. and it's hit piece after hit piece after hit piece. And I'm glad the FBI and DOJ came out and said, and said that nothing illegal happened, no criminal activity. You're talking about guys spent 34 years enforcing them all. So after all the sacrifices, after serving my nation all these years, they want to come out and dirty me up.

23:51Joshua Johnson:But keep coming, because you know what? Tom Homan isn't going anywhere. Tom Homan isn't shutting up. And Tom Homan's going to keep doing what he's doing, because we're going to President Trump's the greatest honor of our life. We're making this country safer again every day. We're going to keep doing it. Mary McCord, those two statements, Mr. Holman never took the$50 ,000. Get your facts straight. Followed by, I never did anything illegal. Those are not the same thing.

24:15James Comey:They're not. And, you know, he doesn't have an obligation to say I didn't take the$50 ,000. But one would certainly think that when the accusation is that he did, if he did not actually accept that. You might think that among all those other comments that he made that he would say, and by the way, I didn't take$50 ,000. So it's a striking situation to have where we're seeing this prosecution and investigations of President Trump's political enemies. And he's being so explicit that he wants these things to happen. He's directing them to happen. He claims to have fired Eric Sieber, who was not willing to make it happen, although I think Eric Sieber also maybe resigned.

24:57James Comey:Maybe these things were simultaneous. And at the same time, we see an investigation into one of his allies, his actual drug czar, being squashed. Now, there is a question about whether there was actually a crime at the time that he accepted that money, because the bribery crime does require bribery of someone who is a government official or who has been selected to be a government official.

25:21Joshua Johnson:And this allegedly happened before the election, So he wasn't a government official yet.

25:26James Comey:That's right. But that would be that is all the more reason why the FBI would say, OK, now let's just wait, keep the investigation open. If Donald Trump wins the election, then we will see whether he is still once he is in a an actual government position is still, you know, soliciting and amenable to bribes for official acts.

25:47Joshua Johnson:So, Glenn, when we look at the contrast, Donald Trump has said there's more to come. He's gone after Leticia James, the attorney general of New York. He said Adam Schiff, that senator from California. He's named a whole bunch of other people, maybe even Christopher Wray, the former director of the FBI, who he wants to go after. What are people you talk to saying about that roadmap and even the contrast with the Hohman investigation, which was shut down? Who knows? I mean, the interesting element of the Hohman investigation, and we broke the story along with MSNBC virtually at the same time. And my reporting indicated to me that the folks in the Biden administration, this was fall, I may be getting my dates somewhat wrong.

26:31Joshua Johnson:It was October, I believe, of 24 when the Holman thing was discovered. And this was part of an ongoing investigation into something else. He was just sort of picked up. They knew it was a hot potato and actually, from my reporting, didn't really understand it. But what's going on right now with Trump and singling out his enemies is completely sui generis and totally different. Kit emails to say, where is Congress in all of this? And Rodney says, because the other branches of government have failed, we need to just let the chips fall at this point. Let the Trump prosecutors fail in court. Their credibility is weak as it is.

27:06Joshua Johnson:The Republicans will see the response at the midterms. Thanks for that comment, Rodney. Still to come in all of this, what's at stake for our democracy? More in just a moment.

27:21Joshua Johnson:This week on the NPR Politics Podcast, the CBS Stephen Colbert dust-up is part of a pattern. Corporations are changing to avoid angering President Trump and his administration. It's really the first time I can remember so many of these organizations have bent because of their own business interests. This week on the NPR Politics Podcast. Listen on the NPR app or wherever you get your podcasts. Let's get back to our conversation about the Department of Justice. Now, late last week, the DOJ brought charges against former FBI Director James Comey. He responded to the indictment in a video message.

27:56Joshua Johnson:My family and I have known for years that there are costs to standing up to Donald Trump. But we couldn't imagine ourselves living any other way. We will not live on our knees. And you shouldn't either. Somebody that I love dearly recently said that fear is the tool of a tyrant. She's right. But I'm not afraid. And I hope you're not either. I hope instead you are engaged, you are paying attention, and you will vote like your beloved country depends upon it, which it does. And let's add a new voice to the conversation now, an expert on authoritarianism to help us figure all this out, what it means for the country and for the democracy.

28:42Joshua Johnson:Lucan Wei is a professor of democracy at the University of Toronto. He's co-author of Competitive Authoritarianism, Hybrid Regimes After the Cold War. Professor Wei, welcome. Thank you. We heard James Comey there quoting a friend saying, fear is the tool of the tyrant. Does that warning apply to the current moment in the United States? Very much so. I mean, I think as someone who studied many autocracies, you know, no leader can go after all forms of opposition in a country. You know, there's just too many people to go after. So a standard strategy is to go after a big fish like someone like James Comey.

29:22Joshua Johnson:And what that does is it often can silence others and encourage others to sort of self-censor and refrain from criticism or even associate with people whom the administration is targeting. And we've really seen that already to a disturbing degree. We have someone like Bill Gates, who's not at all a fan of Donald Trump, but he's refraining from working with Arabella Group that is associated with the Democratic Party. We've seen the Ford Foundation, which is apparently according to the New York Times, has been vetting the organizations, its funds to make sure there's nothing that sort of reeks of opposition.

30:02Joshua Johnson:So that's really a product of fear. This is what sort of Tim Snyder calls obeying in advance. So we have to resist that. And I think, you know, that that is very important. What's the track record like in other countries? Give us an example or two of what that sort of climate of fear and the inhibitory effect that, you know, getting people to back away, like how that works in other places. Well, basically, you know, the Russia is kind of one of the more extreme cases, you know, where you have, you know, they went after the richest man in the country in 2001. Mikhail Khodorkovsky, and that immediately shut down.

30:35Joshua Johnson:All businesses which had previously been involved in funding opposition parties stopped doing that. And everybody just like clamped down and then stopped engaging in opposition activity. So what happened there is that basically there was no effective opposition long before there was even any kind of serious repression in Russia by sort of going after these big folks. But I do think that one other issue is important is that the United States is not Russia, right? And that the United States, you know, Trump, as powerful as he is, cannot simply lock people up on totally trumped up charges. And people have to remember that.

31:14Joshua Johnson:So there is, you know, that resistance actually works. And that's very important to realize. But if you obey in advance and don't resist these efforts either to fire you or sort of push back when you're being investigated, that simply works in Trump's favor. We've got a couple of things going on here. We're going to talk more about prosecutions and accusations of criminality. But Glenn, Lukin just mentioned another dynamic that's been going on and in fact was going on last week at the White House. The president very publicly signing orders or proclamations, authorizing the Justice Department to investigate groups.

31:52Joshua Johnson:He calls them left-wing radical groups. He ties it to some of the political violence that we've been seeing, unfortunately, on the American scene. He's named organizations like the Ford Foundation. He signed orders about Antifa, which don't have the weight of law. Give us sort of a scope of what the president has been billboarding from the Oval Office about how he wants to go after his political opponents outside of criminality. Well, he's indicated that he wants to silence dissent. I think that is a fair interpretation of that. And let's harken back again to sort of the threats against academic institutions that opposed him.

32:34Joshua Johnson:Also, the gambit with the law firms early on, which seems to have partially succeeded. And we also see him attacking individuals. That is the extraordinary component of this. He reads social media or has things forwarded to him. And so he then identifies individuals he perceives as malefactors or enemies. Perfect example, Lisa Monaco, the deputy attorney general this week, who was hired by Microsoft after spending some time looking for a job. He then goes after Monaco. What does that do? What would we anticipate? Well, I've heard rumors of all kinds of things. We don't know what he's going to do.

33:14Joshua Johnson:But it is the targeting of individuals. Siebert at EDVA is another example. So this is just part of this broader push that Trump has. He feels entirely emboldened. And again, I don't know who said it earlier, until Republicans in the Senate or until the electorate speaks, he will continue to do this unimpeded because the pushback that he is getting from his own political appointees is either negligible or ineffectual. and he seems to be entirely emboldened and believes that he has a political mandate to do whatever the hell he wants, despite the fact that his approval ratings now are between 38 and 44 percent.

33:55Joshua Johnson:Mary, there's this truism, this cliche, I guess, that the president is the chief law enforcement officer of the United States, which is a true enough statement. It's true. How does that fit in to how independent the Justice Department is supposed to be? In other words, you spent 25 years there, I think. What does that independence mean, practicing criminal law from the inside? Why is it important?

34:19James Comey:So it is true that he is the head of the executive branch and the Department of Justice is a department within the executive branch. And there is nothing in the Constitution that says that he cannot tell his Department of Justice what to do. But that's why these norms of independence have been so important since Watergate, because during Watergate, when it appeared that the president was directing investigations and prosecutions, and famously people resigned over that and threatened to resign, which we're seeing again now, of course. That's when I then attorneys general and presidents of both parties said, wow, this is very damaging to the perception that justice is done independently of political, you know, inclinations and political vengeance.

35:07James Comey:And it's important for the American people to think that our Justice Department follows the facts and the law and doesn't just do what the president wants them to do. I will note, however, that the Supreme Court's immunity decision in 2024, giving Donald Trump criminal immunity. Now, granted, it was only about criminal immunity, criminal immunity for prosecution for things that were his official acts and defining very expansively what his core constitutional powers are. and including within that, those core constitutional powers, his direction to his own Department of Justice, that has also, I think, had an incredible emboldening impact on Donald Trump.

35:48Joshua Johnson:We're also hearing from a lot of you. My name is Julia.

35:52James Comey:I'm calling from the greater Atlanta area. Justice Department has completely lost its footing. If you look at the occurrences in 1938-ish Germany, you see it's like a checklist of dictatorship and fascism. We need to take our country back. We need to take our democracy back.

36:16Joshua Johnson:Professor Lukin Wei, we look at history, we use words like authoritarianism and slide into authoritarianism. Put these things together. How, if at all, does the president taking away the independence of the Justice Department and prosecuting the people he doesn't like connect to the slide into authoritarianism potentially? It is pretty much definitional of the slide into authoritarianism. Listen, you know, fundamental to authoritarianism is the use of the state apparatus, the police that are normally supposed to go after the bad guys, the criminals, to go after your political rivals. And in the United States for the last 50 years, especially since the post-Watergate reforms, we've had a system in which, thankfully, the Department of Justice and the FBI have been autonomous, have been operated at arm's length from the political party.

37:08Joshua Johnson:So we haven't had this. And what Trump has done is politicize these very powerful agencies. Now, again, I don't think it's likely that he will succeed in a lot of these investigations. I mean, I think it's indicative that he's chosen Lindsay Halligan, who is almost comically incompetent. But what's even an incompetent prosecutor, she's the woman who's prosecuting James Comey, can still make life hell for the targets by making them use their life savings and causing months of sleepless nights by even an unsuccessful prosecution. We got this message from John who says, I believe the most important fact about this administration's attack on our democracy is that it is planned and coordinated and an attack on multiple fronts.

38:00Joshua Johnson:The response needs to be just as broad and multifaceted. Waiting for Election Day 2026, as Glenn alluded to, will only allow the challenge to broaden and become more entrenched. Professor Lukenway, what about that? But what about, I guess, the need to rely on the traditional norms and tools of democracy when you're trying to resist something that is manifestly undemocratic? Yeah, I mean, I'll be obviously voting is important and that's absolutely essential. But I think we can all resist right now. I think we can not sort of obey in advance. We can resist efforts by the Trump administration to encourage self-censorship.

38:42Joshua Johnson:We can support those actively and publicly who are being targeted. You know, funding organizations continue kind of demonstrably funding those who are the object of Trump's criticism to show that fear does not work. Because pushing back, it does work. We looked at what happened with, you know, the talk show host on ABC, you know, who, you know, efforts to, I forget, to cancel his program, you know, didn't work. He was put back on the air. And so I think it's wrong to simply decide that we're going to wait until Election Day to do something. We got this from Marion. Glenn, this is for you. How much is distraction the point of Trump's political vendetta?

39:26Joshua Johnson:Show trials have been a tool sowing political fear and intimidation by insecure and paranoid historical leaders like Joseph Stalin and Joe McCarthy. How much is it also about creating distractions from policy failures, corruption, scandals like Jeffrey Epstein? Conspiracy theories aside, Glenn, it is true that this has occupied almost all of our oxygen for the last 10 days since Trump started this campaign in earnest. Well, reporters who cover this administration are storm chasers. when there is, when one tornado rips through town and disappears, another one appears on the horizon. And it is, I don't know what the motivation of Trump is in bringing all this stuff up.

40:13Joshua Johnson:I think he's got a lot of different things he wants done. Our reporting shows that on and around middle of July, when the Epstein thing was raging, someone whispered in his ear and said, why is this guy in EDVA not bringing these criminal cases? And then Trump started to fire up the engine here. So when things are going bad, this is the kind of thing that he does. It's been his go-to tactic all the way through. The question here is, to what extent will, as Mary said time and again, the question here is whether or not these things will find a foothold in court. And I would argue, and I'll go by Ed Martin again, the guy who's running his weaponization task force, part of the goal here is to name and shame, make people spend their money, put them on their back foot.

41:04Joshua Johnson:So the goal here, unlike what is mandated in the justice manual, the guidebook of the Justice Department, is not necessarily to achieve prosecutions or even necessarily have an investigation yield anything, but to put your perceived enemies on the defensive. Mary McCord, you've been, like I said, in a courtroom or two. You've carried one or two indictments in your time. What are you watching for next here? Both if you want to talk about the four corners of the indictment, but more broadly, as Glenn is talking about, the intimidation, the cost, and the knock-on effects of this type of prosecution.

41:40James Comey:So besides this particular case, I'm really looking at what the prosecutors across the Department of Justice are going to be doing with respect to some of the other investigations that the president is pushing. And that's not only against political enemies like Letitia James and Adam Schiff and others like that, but also this effort to crack down on what he calls domestic terrorism and political violence, naming it completely one-sided.

42:07Joshua Johnson:Mary McCord, before we go, though, I have one burning question. What about mass resignations at the Eastern District. What about all the lawyers? Are you expecting any of that? Would you expect that?

42:17James Comey:I expect there will be more people resigning, not just in the Eastern District, but in other U.S. attorneys' offices and at the Department of Justice, just as there has been ever since January 20th.

42:27Joshua Johnson:People who say, I got into this business because I have integrity and I just can't do this. We have seen those types of resignations and perhaps we will see more. I want to thank our guest, Professor Mary McCord, Executive Director at Georgetown Laws Institute for Constitutional Advocacy and Protection and a former acting assistant attorney general for national security at the DOJ. And Glenn Thrush, reporter covering the Justice Department at the New York Times. So very well. Go read his coverage. It's so good. Also, Luke and Wei, professor of democracy at the University of Toronto. He's co-author of Competitive Authoritarianism, Hybrid Regimes After the Cold War.

43:03Joshua Johnson:Thanks to you all. Remember, back every Monday for If You Can Keep It. Today's producer was Avery Jessa Chatnick. This program comes to you from WAMU, part of American University in Washington. It's distributed by NPR. I'm Todd Zwillick. We'll talk more soon. This is 1A.

43:38James Comey:Get in, loser. We're taking a trip under the sea to a junkyard.

43:43Joshua Johnson:I've done Cobra helicopters. We've seen old washer machines. Does a second strip book count?

43:48James Comey:This junk helped create one of the world's largest artificial reefs and a new home for many marine animals. But how did our trash become another fish's treasure? Find out on Shortwave, listen in the NPR app or wherever you get your podcasts.

44:03Joshua Johnson:I met this guy on the bar train one time and I had my bass with me and he goes, man, what do you want to do? What's your dream? I'm Jesse Thorn on Bullseye Rafael Sadiq. He's nominated for an Oscar. He played bass for Prince. And of course, he co-founded Tony, Tony, Tony. And I go, I want to be in a band with my brother. That's on the next Bullseye. Find us in the NPR app at MaximumFun.org or wherever you get podcasts.