Comey Defense & Michael Jordan NASCAR Court Win

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1:45June Grasso:This is Bloomberg Law with June Grosso from Bloomberg Radio. My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system, and I'm innocent. So let's have a trial. But will the criminal case against former FBI Director James Comey even get to trial? Comey's defense has filed several motions to get the case dismissed before trial, including a motion to dismiss because the government engaged in a vindictive and selective prosecution against him and a motion to dismiss because the U.S. attorney, Lindsay Halligan, was illegally appointed. And yesterday, a frustrated judge scolded the prosecution for its indict-first, investigate-second approach to Comey's case.

2:39He ordered prosecutors to turn over the grand jury transcripts and a trove of materials from the investigation. Comey has pleaded not guilty to the charges of lying to Congress in 2020. Charges filed days after President Donald Trump appeared to urge his attorney general to prosecute the former FBI director and other perceived political enemies. Joining me is former federal prosecutor Robert Mintz, a partner at McCarter in English. A federal judge yesterday scolded the prosecutors for what he described as their indict first and investigate second approach to the case, saying this is not a typical case.

3:23Isn't that what Comey has been saying? The magistrate judge who handles the discovery phase of the potential trial was clearly frustrated with prosecutors and ultimately instructed them by the end of the day today to turn over grand jury materials and other evidence that investigators had seized during the investigation. The judge was frustrated with the lack of information that federal prosecutors had regarding evidence that was seized back in 2019 and 2020 when prosecutors executed a search warrant on Columbia law professor Daniel Richmond's office in connection with an investigation that was conducted during Trump's first administration that's part of an inquiry into whether or not he or Comey had illegally shared classified information.

4:15The Justice Department back then during Trump's first term closed the investigation without charges but now prosecutors are seeking to use that evidence in this criminal prosecution of James Comey, and that's what the magistrate judge was frustrated about because Comey's lawyers argued that they had yet to see that information, and some of it may be privileged since at one point Mr. Richman was acting as an attorney to James Comey. Prosecutors were ordered to turn over all of that information, including what went on in front of the grand jury when the indictment was obtained against Comey. Besides attorney-client privilege questions, the defense is also claiming that prosecutors shouldn't be allowed to use that because it was obtained through search warrants, as you said, that were approved in a different investigation involving a different set of alleged crimes than Comey faces now.

5:11Well, as you say, what happened was that prosecutors executed four search warrants on Richmond's devices between 2019 and 2020, allowing investigators to review his computer hard drive, for example, his email account, iCloud devices. And that's because Richmond had briefly represented Comey as an attorney after Trump fired him as FBI director in 2017. Some of that information might be protected by the attorney-client privilege, but the Comey lawyers are arguing beyond the privilege issue, it's simply unfair for that information to be admitted in this case because, as you say, this is a different case.

5:51The search warrant was obtained based upon information that was searching for different evidence and potential different criminal violations. So they're saying different investigation, different set of alleged crimes, and therefore the information that was obtained from those four search warrants should not be admitted in this criminal case. I take it that that doesn't happen often. No, it doesn't happen often. I think you also have to bear in mind that the 2019 and 2020 search warrants authorize agents to review Richmond's devices only for potential evidence of specific crimes. And so in that case, while search warrants are generally fairly broad, they list a slew of crimes for which evidence may be seized and they're fairly broad and they give a great deal of latitude to agents in terms of seizing evidence.

6:42In this case, it appears that those search warrants were very limited or certainly more limited than they typically are. And it only allowed the government to review material that was relevant to the specific crimes that were alleged in the search warrant. So it raises the question about, number one, whether the government has reviewed information that went beyond the scope of those initial search warrants. And secondly, whether the information that was derived from search warrants that were permitted only to investigate certain crimes could be used now to investigate a crime that was not contemplated at the time that the search warrants were issued.

7:18And apparently the prosecutors have been using information obtained from those search warrants in court papers when it hasn't gone through, you know, the judge yet. Holmey's lawyers raised two interesting points before the magistrate judge. Number one, they argued that at the time that those records were seized from Mr. Richman, Mr. Richman's lawyers were permitted to review the evidence and to remove anything they thought was covered by the attorney-client privilege. But Mr. Comey's lawyers never saw this evidence and never had an opportunity to review it prior to it being used by prosecutors here.

7:56So they're arguing in the first instance that privilege belongs to James Comey, doesn't belong to Mr. Richman. And Mr. Richman's interests may have been different at that time than James Comey's interests are now. So the judge apparently agreed with them and said everything seized back in 2019 and 2020. You've got to turn over to Comey's lawyers so they can go through it and they can make a separate argument as to whether or not any of that information is privileged or not. And the second point is that they are arguing that prosecutors have already used this material in some of their filings with the court.

8:31And the judge seemed to take an interest in that. And he warned prosecutors that if they quote in court filings from that information that was seized from those search warrants before Mr. Comey's lawyers have an opportunity to complete their review, that they do so, quote, at their own risk. Interestingly, if the judge later rules that prosecutors should not have had access to those seized communications, it would arguably taint the entire case and would provide a basis for Comey's lawyers to move to dismiss the indictment. Comey's defense lawyers had already asked for a transcript of the grand jury proceedings, and this relates to Lindsay Halligan, who was installed as U.S.

9:14attorney hastily. She has no experience as a prosecutor, and she personally presented the case against Comey and New York Attorney General Letitia James to the grand jury with no help from experienced prosecutors who were not willing to take part in the grand jury proceedings. So Comey's defense is claiming that there were irregularities during the presentation to the grand jury. So, Bob, let's say you've never presented a case to a grand jury. You don't have anyone experienced in the grand jury room with you to help you out. How difficult is it to present a case to a grand jury properly? Well, if you're an experienced prosecutor, appearing before the grand jury is fairly routine and not that difficult.

10:03It's not like in your presentation before the grand jury, complicated legal issues typically arise. But in this case, the prosecutor, Lindsey Halligan, had just been appointed as an interim U.S. attorney in the Eastern District of Virginia and had never presented a case before a grand jury before. Comey's lawyers are arguing that they're entitled to pull back the curtain on that grand jury proceeding, something that very rarely happens. Generally, once an indictment is returned, prosecutors and the defense move on to the trial itself. And there is generally not a basis to go back and review the presentation before the grand jury unless there is some evidence of some type of serious irregularity.

10:46And that's exactly what Comey's lawyers are arguing here. They have asked the judge to provide them with all the grand jury materials, and the judge has ordered that the government turn that over. And the basis of their argument is that there were a series of irregularities. They point to the fact that Ms. Halligan kept the grand jurors beyond normal business hours after the grand jury voted to indict on two charges but refused to indict on a third. They also argue that she may have used attorney-client privilege information in her presentation. And then there was a further irregularity because she apparently signed two indictments.

11:24One of them was the one that was actually returned by the grand jury, and the other indictment was the one that was rejected by the grand jury, at least as to one count. And given all of these irregularities, the magistrate judge has taken the unusual step of saying to Comey's lawyers, you're entitled to review this entire proceeding. And there's little doubt that once they do that, there will be some other issues that they will be able to raise as to why the presentation was not valid. And if they can ultimately convince the judge that the irregularities are serious enough so that it taints the entire grand jury process and that indictment is thrown out, they may well have won their case because the statute of limitations, I'm sure they will argue, has now expired.

12:06Coming up next on the Bloomberg Law Show, I'll continue this conversation with former federal prosecutor Robert Mintz. Attorney General Pam Bondi basically wants a do-over. And Comey's defense team wants to know, what's the lie Comey supposedly told? And later in the show, Michael Jordan's racing team wins a key legal fight in his antitrust feud with NASCAR. I'm June Grosso, and you're listening to Bloomberg. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need.

12:46Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. support for the show comes from public.com if you're actively involved in your portfolio you probably catch yourself repeating the same actions buying the dip manually sweeping idle cash putting on a hedge on public you can now create ai agents that handle all these tasks on your behalf just describe what you want to do in plain english like if the vix hits 25 buy a put option on the s &p 500 or if my cash balance goes above$20 ,000, move the excess into my direct index.

13:34You approve of the workflow and your agent handles the rest. Monitoring the market, watching for your conditions and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures.

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14:50Make every journey more rewarding with a$300 annual travel credit and access to a network of airport lounges. whether you're looking for pre-flight productivity or time to rest and recharge. Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for Business. Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A. Member FDIC. The indictment of former FBI Director James Comey came just five days after President Donald Trump, in a post on Truth Social, demanded that Attorney General Pam Bondi bring charges against his perceived enemies, naming Comey, New York Attorney General Letitia James, and California Senator Adam Schiff.

15:44The charges center on testimony Comey gave in response to questions from Republican Senator Ted Cruz during a 2020 hearing over the FBI's investigation into Russian interference in the 2016 election.

15:59June Grasso:What Mr. McCabe is saying and what you testified to this committee cannot both be true. One or the other is false. Who's telling the truth? I can only speak to my testimony. I stand by what the testimony you summarized that I gave in May of 2017. Comey's defense team is trying to get the charges dropped before trial. They've filed several motions, including a motion to dismiss because the government engaged in a vindictive and selective prosecution, and a motion to dismiss because the U.S. attorney was illegally appointed. I've been talking to former federal prosecutor Robert Mintz of McCarter & English.

16:41So, Bob, one of the big arguments that Comey is making, as well as New York Attorney General Letitia James, is that Lindsay Halligan was illegally appointed to the position of U.S. attorney for the Eastern District of Virginia. So Attorney General Pam Bondi has retroactively given Halligan an extra title of special attorney to try to withstand the claims that she was illegally serving when she brought the charges. I mean, will a court let her sort of erase her mistake and say, oh, by the way, would a court actually let her do a retroactive appointment? Well, that remains to be seen. We don't usually see this kind of litigation around the appointment of a U.S.

17:29attorney. I won't say that it never happens, but it certainly does not typically happen. And here we had a situation where the argument was that Halligan was not lawfully appointed as interim U.S. attorney, and she shouldn't have been in front of that grand jury in the first place. And the argument is that the attorney general had appointed Halligan's predecessor, an experienced prosecutor from the Eastern District of Virginia, to lead that office. And that appointment was made on January 21st. That starts this 120-day clock ticking under the statute, which allows time in most circumstances for that prosecutor to get confirmed by the Senate.

18:08In this case, Mr. Siebert was not confirmed. And after 120 days expires under the statute, the defense will argue the district court, not the Justice Department, has exclusive power to appoint the interim U.S. attorney. That clock ran out on May 21st of 2025, at which point the court reappointed Siebert as United States attorney to serve until the vacancy is filled. Then Siebert was fired. And the defense has argued that the district court at that point was the only legitimate appointing authority and that the attorney general and the president did not have the power to appoint Miss Halligan to another 120 day term.

18:50Do you think that this retroactive title giving will fly with a judge? I think the argument by the attorney general that she can retroactively give Eastern Virginia's top prosecutors an extra title in order to try to defend against the claims that Halligan was improperly appointed is probably not going to gain a lot of traction with the courts. Typically, the courts will look at the facts at the time and whether or not the appointment was proper under the rules, under the regulations, under the statutes at the time of the appointment. And I think it's an uphill battle to argue that even if there was a deficiency, then that can be remedied retroactively by an appointment.

19:33Comey is also claiming that the indictment is hopelessly vague and defective on its face. And this may be a result of Halligan having no prosecutorial experience and no help from prosecutors. And they say that Senator Cruz's questions were fundamentally ambiguous and that Comey's response was literally true. So they want to know from the prosecutors, which statements are you claiming were false? And when you listen to that exchange between Cruz and Comey, it's hard to see where there's even a possibility of a lie where Comey says, I stand by my prior testimony. Yeah, and that's exactly why false statements, that's exactly why false statement prosecutions are extremely difficult because you have to parse through exactly what was the question and what was the answer and demonstrate that at the time the answer was given, it was not only false, but it was intentionally false and that it was false about something that was material.

20:38So in this case, the prosecution is based on a hearing before the Senate Judiciary Committee on September 30th, 2020. And at that hearing, as you say, Senator Ted Cruz asked Mr. Comey whether he had authorized someone at the FBI to be an anonymous source in news reports. The indictment says Mr. Comey misled the committee by saying that he had not done so. Now, Comey's lawyers have attacked that indictment by saying that the questioning by Mr. Cruz was vague and imprecise. And they point out that at the time that Senator Cruz was questioning Mr. Comey about whether he had authorized anybody to leak information, that Senator Cruz was referring to Andrew McCabe, who once served as Mr.

21:20Comey's deputy at the FBI, and was not referring to Daniel Richman, who had been a former FBI employee and later became the attorney for James Comey. So they're arguing that the indictment is defective on its face because in order to prove that Mr. Comey lied, you have to show that there was a clear question and that he gave a clearly false, a knowingly false answer to it and that he had an intention to mislead the committee and that the information he provided that was false was material and that this somehow obstructed the relevant congressional proceeding. They say that that information is not contained in the indictment, and one of their motions is a requirement that the government provide that information.

22:00So what you have here basically is an argument that the indictment is defective on its face. So in other words, it's not an argument that the government has its facts wrong because a factual dispute is something that has to be resolved by a jury at trial. They are arguing that this is a decision that really needs to be made by the judge because on its face, the government is unable to prove the charges. The allegations in the indictment simply are not enough to sustain a valid conviction. And that's why they're filing this whole slew of arguments to try to get this case dismissed before it ever goes to trial.

22:36One argument that was being discussed even before the defense filed its papers was, you know, a motion to dismiss because of a vindictive and selective prosecution. And here the Comey motion includes a document with a 60 page long list of links that detail Trump's, shall we say, not so kind statements about Comey. I mean, how strong is their vindictive prosecution case? I know it's hard to get something dismissed for vindictive prosecution. No, that's exactly right. I mean, motions for a vindictive prosecution are exceedingly hard to win. They require defendants to prove that prosecutors have displayed animus towards them while they were seeking to exercise their rights and that the charges never would have been brought except for that animus.

23:23Now, prosecutors have argued in response that the comments made by President Trump to prosecute Mr. Comey were only suggesting that if Mr. Comey committed a crime, that they ought to prosecute him and that he was not directing the Department of Justice to prosecute Mr. Comey regardless of whether or not a crime was committed. We'll have to see how the judge handles that at the end of the day, but the vindictive prosecution standard is fairly high, and that may be a difficult argument for the defense to prevail on. Bob, it seems like we're seeing case after case where judges are questioning, rejecting, or not relying on what federal prosecutors are telling them.

24:07We have that happening in this case to a certain extent. And in the criminal case against the mistakenly deported Abrego Garcia, the judge has ordered the prosecutors to send their internal communications to him. And there's a hearing schedule for December where the number two leader of the Justice Department may have to testify. Today, a judge in Chicago found that the evidence from the government about the Border Patrol's use of force was not credible. We've had other judges questioning whether the Justice Department is following orders. It seems to be a crisis of confidence where judges are not accepting at face value.

24:53Well, there's no question that historically federal judges give great deference to the government and specifically the U.S. Attorney's Office when they appear in court on federal cases. I was a federal prosecutor for almost 10 years, and I can say from experience that judges take prosecutors at their word. They sometimes request additional information. They may request additional briefing in order to make sure that the government has the law right. But if a federal prosecutor makes a representation to a federal judge in open court, generally that is something historically that judges will accept.

25:32I think we are seeing a greater degree of skepticism by judges because we're seeing a series of unusual issues that judges have never really faced before. For example, the issues regarding whether or not the appointment of the U.S. attorney was properly done is not something that judges typically deal with. Some of the issues that went on in the grand jury in the Comey indictment that we talked about earlier are not issues that typically arise. Again, it is very unusual for the defense to get access to the grand jury proceeding. It's a motion that defense lawyers routinely make. It happens all the time, so it's not as if judges are not faced with that question, but it's rarely granted.

26:13We rarely have a situation where defense lawyers are privy to that entire proceeding because once they look at everything that's said before that grand jury, they're certainly going to come up with some other arguments as to why some of the presentation may have been improper. I think it's fair to say that there have been examples of where federal judges are not nearly as deferential to federal prosecutors as they have been in the past. That deprives them of one advantage they have over defense attorneys. Thanks so much, Bob. That's Robert Mintz of McCarter & English. Coming up next on the Bloomberg Law Show.

26:48Michael Jordan's racing team wins a key legal fight in his antitrust feud with NASCAR. Will the case be settled or go to trial on December 1st? I'm June Grosso and you're listening to Bloomberg. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500.

27:25Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC.