Has Trump's retribution campaign been derailed (for now)?

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1:14This case mattered to me personally, obviously, but it matters most because a message has to be sent that the President of the United States cannot use the Department of Justice to target his political enemies. I don't care what your politics are. You have to see that as fundamentally un-American and a threat to the rule of law that keeps all of us free. I know that Donald Trump will probably come after me again, and my attitude is going to be the same. I'm innocent. I am not afraid. And I believe in an independent federal judiciary. the gift from our founders that protects us from a would-be tyrant.

1:53That was the defiant message from Donald Trump's longtime political foe, the former director of the FBI, James Comey. Donald Trump had vigorously pursued criminal cases against him and against the New York Attorney General, Letitia James. But yesterday, both of those cases were dismissed in court. We have talked frequently before about Donald Trump's long retribution campaign in his second term. Well, it may have hit a roadblock, for now at least. Welcome to AmeriCast.

2:50Hello, it's Sarah here in the BBC's Washington Bureau. And it's Anthony right next to Sarah here in Washington, D.C. And it's Marianna in the worldwide headquarters of AmeriCast in London. We're talking to you just before 10 o 'clock in the morning on Tuesday here in the United States. So it's just before three in the afternoon for Marianna in the U.K. And we're going to be talking about whether or not Donald Trump's much vaunted plan to exact retribution on so many of his political adversaries and enemies has come to a grinding halt, or at least run into some pretty significant problems because a US judge, a federal judge, has just dismissed the charges that the Trump administration brought against both the FBI Director James Comey and the New York Attorney General Letitia James, two of the people Donald Trump had been most focused on going after in this second term.

3:39And it's run into real problems, hasn't it, Anthony? Yeah, and I guess you could say that this was dismissed on a technicality. It wasn't on the merits of the case. It was on the fact that Lindsey Halligan, who was a U.S. attorney who was prosecuting this case, had not been lawfully appointed by Donald Trump. I think if people followed this case, they may remember that there was a great amount of turmoil leading up to those indictments where the U.S. attorney who was in that position before allegedly refused to bring charges. There may have been a memo written within the U.S. attorney's office, a declination memo, it's called, saying that they didn't have grounds to bring the charges.

4:17He resigned, was fired, if you ask Donald Trump, and then Halligan was appointed. And this all turns out whether Halligan was legally appointed, because U.S. attorneys have to be confirmed by the U.S. Senate, and she hadn't been yet. So the question is, was she acting in an acting capacity? Did she have the ability to bring these charges? And a judge looked at it and said no. And that is why both of these prosecutions, at least for now, have fallen apart because the person who brought the indictment wasn't there legally. Yeah, it's really interesting that this is the technicality it's fallen apart on.

4:51So there'd be a huge amount of criticism of Lindsay Halligan, who had never prosecuted anything before she was brought in to do these cases. You know, these really experienced prosecutors in the Justice Department saying there just wasn't enough evidence to bring these charges. And then within, what was it, about three days or something of being appointed, she's managed to come up with an indictment and takes it to a grand jury. There was criticism that she had handled that process wrongly, but that wasn't adjudicated on the end. It was simply the fact that the judge said, look, you had an interim US attorney and you're allowed to have that for 120 days, but he resigned or was fired.

5:25You can't then have another interim who can serve for 120 days because then you could just have another one and another one and another one and then you'd never actually have to get Senate confirmation about it. In fact, what she said was the implications of a contrary conclusion are extraordinary. It would mean the government could send any private citizen off the street, attorney or not, into the grand jury room to secure an indictment as long as the Attorney General gives her approval after the fact. That cannot be the law. So that's why these cases were thrown out on this particular technicality.

5:56But Marianna, we don't know yet, do we, whether this is actually the end of Donald Trump trying to go after James Comey and Letitia James. Well, exactly, Sarah. The White House has come out to say, and they told the BBC this, the facts of the indictments against Comey and James have not changed and this will not be the final word on this matter. And as we know, Donald Trump has quite ferociously gone after certainly James Comey and also Letitia James on Truth Social, across social media, calling them guilty as hell. And then he also said justice must be served now with three exclamation marks and all capitals.

6:31So it doesn't feel like he's about to suddenly say, oh, OK, fine, let's all move. Let's all move on with this. But what can he actually do? Well, I guess they could find a way to to legally appoint Halligan to the job. She would have to be confirmed by the House or by the Senate. This actually isn't the first time that the Trump administration has run into this problem. Alina Habba, who was another one of Donald Trump's personal lawyers like Halligan, was named to a New Jersey U.S. attorney's office. And a judge there said, no, you can't do that, threw that out. So this is something they're running into repeatedly when Donald Trump tries to get folks that he wants who are who are sympathetic to his calls for prosecution, sympathetic to his outlook on the Justice Department and not getting them in there.

7:23I mean, it's it's a complicating, complicating factor for all of Donald Trump's legal agenda, prosecutorial agenda. But it's not necessarily the last word. We should probably just go over what it was that they were being accused of, what it was that James Comey and Letitia James were being indicted for, as we explore whether or not these charges might be revived. So you had James Comey, former FBI director, who was he was in post, Anthony, wasn't he, when Donald Trump came into office the first time? So he inherited James Comey and fell out with him pretty quickly. Pretty quickly about the Russia investigation.

7:58There was that revelation of the dossier that Comey came up to Donald Trump and told him about between when Donald Trump won in November of 2016 and when he took office in January of 2017. That kind of got them off, I suppose, on the wrong foot. This dossier had a lot of allegations based on rumors and other things that had been pulled together about Donald Trump's connections to the Russian government and possible blackmail or evidence that the Russians may have had that would have put Donald Trump in a less than flattering light. That led to a clash with James Comey and ultimately Donald Trump very early in his first presidential term, firing James Comey after telling him that he needed to drop this Russia investigation.

8:45It's funny. I can't hear anybody talk about it, but assuming it's just the Russia, Russia, Russia investigation, because that's what Donald Trump says every single time. And yeah, so that's how they fell out. But what they managed to get an indictment on because they just combed through everything, looking for anything they could possibly charge him with basically, didn't they? And what they came up with was charges of making false statements to Congress and obstruction of justice related to a time that James Comey appeared in front of the Senate Judiciary Committee in September 2020. And he was questioned about the FBI's handling of two investigations, the Russia, Russia, Russia one, and one about Hillary Clinton's use of a private server.

9:21And he denied, I think, wasn't it, he denied authorizing anybody to leak information about these investigations. And the accusation was, no, no, no, you did authorize somebody to leak that information. So you were lying in front of Congress. But I think the problem with that, though, isn't it, is the date of that committee hearing, September 2020. James Comey's lawyers argue there's a five year statute of limitations on that. And that has passed. So if, you know, no matter who they can find to prosecute this case, they'll say it's out of time. Yeah, it passed at the end of September. And he was indicted before that, literally, I think, a day or two before the statute of limitations expired.

9:58But that's what the hurry was about getting Lindsay Halligan into that job in the first place. Exactly. And so now, whether that's, whether it's too late now to indict him again, I think it's kind of up to the judge and whether the fact that this this was thrown out on technicality gives the U.S. another six months or so to bring charges. But it was an interesting case to begin with, and legal experts say it was kind of a tenuous case about not directly on the Russia investigation, not on Comey's handling of it. It was just about this one instance in testimony where he may or may not have contradicted some other testimony saying that he did authorize this leak.

10:38it's worth saying on that point Anthony that so many people on X for example just as you say have been kind of clinging to these indictments particularly in the MAGA influencer world very active social media accounts saying look this is the moment where these corrupt frauds will be shown for what they are and exactly like you say talking all about the Russia hoax as they call it um you know these allegations of foreign interference Russian interference in the election in 2016 and what Trump says were kind of false accusations levelled at him. And they are not best pleased at all that these charges have been dropped, which they see as just more evidence of this huge conspiracy to cover stuff up.

11:17And, you know, it's not just about Comey, it's obviously also about Letitia James. What's that again, Sarah? So remind me what she was indicted on. Yeah, well, so she is the Attorney General of New York, still is, who was charged with bank fraud and making false statements to a financial institution, which was basically around about a mortgage for a home that she bought in Virginia, which is why the case was being tried there, using a mortgage. And it was over whether or not this was a second residence and whether or not she intended to rent it out and if she had properly declared all of that on her mortgage application.

11:54The reason Donald Trump was going after her, though, is because she's the Attorney General of New York who brought the charges against the Trump organisation. in a case that the Trump organization lost last year and had a huge multimillion dollar civil fraud judgment against the real estate empire, with consequences as well for Trump family members who weren't allowed to be directors, wasn't the company directors in New York anymore, and a huge fine. I can't remember what it was. Can you, Anthony? A massive fine, hundreds of billions of dollars, if I remember correctly. And yeah, it does seem like that is why she became a target.

12:29And if these mortgage fraud charges sound familiar, because she's not the only one who has had these allegations lobbed at her. Lisa Cook, who is the Fed chair or the Fed board member that Donald Trump fired, was fired on the grounds of also allegedly making false claims about a mortgage application for a second home. Adam Schiff, the senator from California, who presided over one of the impeachment hearings against Donald Trump. He is being investigated, although not indicted. And there's another congressman, Eric Swalwell, in California, another big Donald Trump critic who is being investigated for the same thing.

13:07And these are all kind of being spat out by the housing authority within the Trump administration. And one guy who is saying and going through all these files and saying, look, maybe they put the wrong numbers down here. Maybe they were trying to misrepresent it to get some sort of a modest tax savings. So that's a case which, well, certainly it hasn't run out of the statute of limitations. So they would need to get another indictment, wouldn't they? So they would need to persuade another grand jury that there were grounds to at least take this to trial. And who knows whether or not they will go ahead with that.

13:37There's some ironies, I think, in the judgment that's had both of these cases thrown out. I don't know if you noticed, Anthony. One of the things that was brought up in court was the case in which Judge Aileen Cannon in Florida threw out the Mar-a-Lago documents case. When Donald Trump's lawyers were arguing, well, this case was brought by a special investigator, Jack Smith, and he was not properly appointed by the president. Therefore, he had no locus to bring the case in the first place. The case must be thrown out. And the very Trump favorable Judge Aileen Cannon threw it out. Well, that was used as a precedent in this case to say if your prosecutorial authorities have not been properly appointed by the president, then the case falls, which is quite entertaining.

14:19Yeah, there is a certain amount of irony to that. And special prosecutors, independent counsels like Jack Smith had been around for decades and no one had ever tried to throw them out before. But Eileen Cannon did find this as grounds to do it rather surprisingly, I think, to a lot of legal experts. But and now it's coming around back to to bite Donald Trump in a kind of an unexpected way. We do. And you alluded to this, but we do should also mention that Donald Trump had this post on Truth Social where he explicitly said that Letitia James and James Comey and Adam Schiff should all be indicted.

14:55And there is now some question about whether that was an accidental. That was a message he sent to Pam Bondi that was supposed to be private. And he accidentally posted it on his Truth Social account. But the connection between Donald Trump calling this out, saying that they're guilty as hell and they need to be prosecuted, and then the indictments passed down from Pam Bondi to this U.S. attorney, it happened in a matter of days, hours almost. And that's actually a reason why lawyers for both James Comey and Letitia James have been claiming that this is what you would call a vindictive prosecution, that it's for political reasons that Donald Trump wanted to bring it.

15:33And things like that truth social post are brought up during those arguments. But that hasn't been tested yet by a judge because the judge threw these cases out on this procedural grounds that the U.S. attorney hadn't been properly appointed. So the question of whether or not you can prove that they're vindictive prosecutions and have them dropped as a result of that, we don't know yet. I guess if Letitia James or if either of them come back to court, that's that will be argued again. And it looks like it might. Pan Bondi, shortly after the cases were thrown out, made a statement saying that they planned on continuing this case.

16:06This is this is her. I'm going to keep going on this. I'm not worried about someone who has been charged with a very serious crime. his alleged actions were a betrayal of public trust. It's interesting because, you know, you've got the people around Trump very, very clearly asserting that they do not plan to let this go. And you've even got, you know, Comey himself, for example, said, you know, I know that Donald Trump will probably come after me again. My attitude is going to be the same. I'm innocent. And Letitia James posted on X saying, I'm heartened by the victory, grateful for the president's support.

16:42I remain fearless in the face of these baseless charges. I mean, all of the suggestion here is that everyone sees this as part of an ongoing strategy, if that's the right word, that this is how Donald Trump is using the Justice Department to target the people with whom he has a problem. I mean, clearly there's a bit of a stumbling block, a bit of a bit of a blockage here, which is getting in the way of that. Do you think it would be fair to describe it as quite a concerted strategy, Sarah? And to what extent has that strategy now been slightly upended? Definitely. I mean, because there's all the cases where they're looking into political adversaries for mortgage fraud that Anthony listed.

17:21And then you can look at other instances where, say, John Bolton, Donald Trump's former national security advisor, having the FBI sent in to raid his home and office looking for classified documents. And that's not the only example of law enforcement being used against people that Donald Trump has said that. I mean, and that's the thing. He doesn't make any secret about it. He says, I will be your retribution. I will be your vengeance and I will go after these people. And then. But the thing is, you do tend to see it then happening. And as ever, when these kinds of legal cases are unfolding, it's often the case that the White House, Donald Trump decide to take aim at the people involved in the process.

17:57That might be the judge. It might be the jury. And they become the focus. And the White House was really quick to respond in this case to Judge Cameron Curry dropping the case against Comey and James, specifically mentioning Curry. Here was what White House Press Secretary Caroline Levitt said on Monday. I know there was a judge who is clearly trying to shield Letitia James and James Comey from receiving accountability. And that's why they took this unprecedented action to throw away the indictments against these two individuals. but the Department of Justice will be appealing very soon. And it is our position that Lindsay Halligan is extremely qualified for this position, but more importantly, was legally appointed to it.

18:38And a lot of this stuff, as you can imagine, fuels a huge amount of online hate and abuse targeting the judges and various other people involved here. I mean, they kind of become wrapped up in all of the drama, Anthony. Yeah, and a standard playbook for Donald Trump. This goes back a decade. If you remember during the campaign in 2015, there was a judge investigating. him. He dismissed him as a Mexican judge because he had a Hispanic background and going through all the various indictments against Donald Trump between his first term and the second term. He blasted the judges there, the one in New York that was presiding over his hush money payment case.

19:14He would constantly disparage as being biased against him. So this is not something new, But it is it does, as I think you're picking up, does direct a lot of hate and anger and, you know, the potential for violence direct against the judiciary, which is not in keeping with the way the U.S. judicial system has traditionally operated. Now, we've had a question in from an anonymous listener saying the U.S. District Judge Cameron Curry has dismissed the criminal indictments against former FBI Director James Comey and New York AG Letitia James after finding that the former Trump attorney, Lindsay Halligan, was not lawfully appointed.

19:52The question is, what does this mean for the Attorney General, Pam Bondi, whom we heard from just a couple of minutes ago? Should she be reminded that although Richard Nixon was not sent to jail, his attorney general was? Good point, Anthony. John Mitchell reference. Yeah, Watergate. It is Donald Trump has immunity from anything he does as president in the line of his official duties, which is kind of a vague standard, has been tested, but it seems to give him a lot of protection. Anyone below him, including Pam Bondi, wouldn't have those kind of protections, although there hasn't been any allegations of illegality from her yet.

20:29I mean, the question is whether she's making these appointments and Trump's making these appointments legally. But that isn't criminal. That is just kind of a procedural thing. Yeah. Although, I mean, Watergate does come up and you hear Richard Nixon being mentioned more and more often because there was a clear separation, wasn't there, between the administration and the people working out of the White House for the president and the Justice Department established after Watergate to try and make sure that there wasn't political interference with justice. And that's what Donald Trump has just ridden a cooch and horses through, hasn't he, in the last few months?

21:05Yeah. And, you know, we've talked about this before, but the thing that got Richard Nixon on the Watergate tapes was his talking about influencing the Justice Department and prosecuting his enemies and investigating his enemies and sticking the IRS on them. And here with Donald Trump, he just comes right out and says it. He says it on Truth Social. He says it in public. And there's not the kind of up in arms outcry across the board from Republicans and Democrats about this. This is just the way Donald Trump operates. Now, we mentioned this on Monday, actually, but it's worth sort of chatting about it in a little bit more detail.

21:39So after Monday's double defeat for the administration in terms of these cases, they launched a new probe into potential court-martial of Democratic Senator Mark Kelly from Arizona, who is a retired U.S. Navy captain and former astronaut. And they've talked about him being a possible Democratic presidential candidate last year. Now the Pentagon said they said on Monday that they're investigating him for, quote, serious allegations of misconduct less than a week after he took part in this video with five other lawmakers who were also ex-service members that repeatedly urged the military and intelligence community to refuse illegal orders.

22:13And this is what triggered Donald Trump to say that maybe people like this could be punished by death, although he later said that's not what he was saying. This is the video. Americans trust their military. But that trust is at risk. This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. Right now, the threats to our Constitution aren't just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders. You can refuse illegal orders.

22:47You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution. We know this is hard. So it was in response to that video that Donald Trump had been posting that this is seditious and treacherous behavior. And he did in one post say that seditious behavior was punishable by death. But then the press secretary definitely said that he was not calling for the death penalty for any of these elected lawmakers. But they have come up with a sort of roundabout way to try and punish Senator Mark Kelly. Right. Mark Kelly is a retired captain, as Mariana noted. And that means that he could be, in theory, called back to active duty by the Department of Defense, Department of War, whatever you want to call it.

23:30But Pete Hegseth has since come out and said that that's exactly what he wants to do in order to have him face either a court martial or some sort of administrative punishment for undermining troop morale or violating universal code of military justice in some sort of way. So in theory, they found a way that they could bring him back, put him before some sort of judicial proceedings and punish him. Although you're picking a fight with a Navy captain, a war hero, a decorated astronaut. That is I'm not sure that the Trump administration really wants to want to lean into that. But they are at least seem to be willing to try it right now.

24:10And what they were saying in that video, which was you can refuse illegal orders. In fact, you must refuse illegal orders if you're given them, if you're a service person. That's true. I mean, that is just a constitutional fact. So can you court-martial somebody for pointing out the truth? I guess I would say this clip or this video that we saw doesn't just do that. It is undermining morale somehow. But yeah, in West Point, the U.S. Military Academy has a plaque that says, you know, you have an obligation not to heed these any kind of orders that are illegal. When anyone in the military, anyone in public service and in government service is sworn into office, they take a an oath to defend the Constitution of the United States and uphold it.

25:00And that is not upholding allegiance to one man. That is to defend the laws. And so you have to make an interpretation of what is a valid order and what isn't in order to fulfill that oath. So it would be certainly quite a scene if Mark Kelly back in his captain's uniform, he posted on social media a picture of his all the medals he won in his Navy dress uniform. You know, it has to show up and defend himself in front of a prosecution by Pete Hegseth, who actually technically was lower ranking officer when he was in the military compared to Kelly. So it's going to make for a fascinating case if this goes forward.