Trump Wants $230 Million & James Comey's Defense

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2:01Chase 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. This is Bloomberg Law with June Grosso from Bloomberg Radio. The usual question that a judge would ask is, which, what, who is this person, what actual position are they serving? The Trump administration has given Alina Haba a string of job titles. She's been interim U.S. attorney, acting U.S. attorney, the first assistant U.S. attorney and special attorney, all in an effort to keep Habba, Trump's former personal lawyer, in the role of New Jersey's top federal prosecutor.

2:52And during oral arguments at the Third Circuit challenging her appointment, appellate Judge D. Brooks Smith questioned the unprecedented maneuvering by the administration. Would you concede that the sequence of events here, and for me they're unusual we could recite them if we wanted to take the time would you concede that there are serious constitutional implications to your theory here the government's theory which really is a complete circumvention it seems of the appointments clause a federal judge has already found that the appointment of haba was done with a quote novel series of legal and personnel moves and that she was not lawfully serving as U.S.

3:41attorney for New Jersey. The appellate judges seemed skeptical of the claim by Attorney General Pam Bondi's counselor, Henry Whitaker, that HABA's designation was consistent with long-standing practices of the Justice Department. And Judge D. Michael Smith pressed Whitaker to provide examples of similar U.S. attorney appointments, which he couldn't do. And told us numerous times how common practice has played into this. And I don't care about dates. I don't care about names. Can you come up with an example of any time that such a concatenation of events has occurred with respect to the appointment of a United States attorney?

4:29Well, I guess I cannot, but I guess I would say that what that series of precise and precisely timed events is not in substance from what the executive branch has done in other contexts, in analogous contexts. My guest is constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law. So, Hal, several people charged with federal crimes in New Jersey are challenging Habba's authority to lead the U.S. Attorney's Office there. Tell us about the arguments they're making at the appellate court. Well, to take a step back, I mean, the appointments clause provides that the president must appoint all superior officers of the United States subject to consent by the Senate.

5:13So, the question here is that Habba, we know, is a superior officer. She's the U.S. attorney that's been decided before, superior officer. So the president importantly gets to fill that position. But there must be Senate consent. And for whatever reason, the president has tried to circumvent the Senate's power to give consent to Haba's position. So that's the legal structure. What's happened along the way is convoluted. But there is another statute called the Vacancies Act, which says that the president can appoint certain individuals for limited a period of time if the position is vacant and thereby can get rid of the Senate consent requirement just for that to fill the vacancy until there's time he can make a decision and decide who should fill that post.

6:00So he did appoint Habba in that direction. The time period lapsed. And under this congressional statute, the first assistant who was like a career officer is then to fill that position, again, only until the president decides who he wants to fill that office, subject again to Senate consent. And so the first assistant under the statute took over office after Habe's time period was over. But then she was fired, and she was fired because then President Trump wanted to put Habe in as the vacant first assistant so she could continue her tenure and continue to avoid the need for Senate consent. So the president here has snubbed his nose at the Senate continuously.

6:46He's done an end run around the appointments clause. And so that's the situation we're in that's now being challenged by several criminal defendants who are now appearing in that jurisdiction. One of the judges, D. Brooks-Smith, called it a concatenation of events. The government's attorney said this was consistent with the longstanding practice of the Justice Department, but he couldn't point to any similar situations. Yeah, I mean, what the government can argue, they really have very limited arguments, is that each step along the way may have some kind of precedence, right? Clearly a first assistant can fill the position until the president appoints a replacement.

7:30But there's never been a situation before where they fired the first assistant so that they could put in the person who previously had the position in so that they can continue being in an acting position without the necessity of senatorial consent. So clearly this is like taking little steps, and the Justice Department has to admit this is circumventing the Senate's consent authority. And so the court is then left with the question of like, okay, each little step along the way maybe has some kind of antecedents or historical practice. But anybody looking at this could say the president is trying to stymie the Senate's important role under Article 2 of the Constitution.

8:10Also, at one point, federal judges in New Jersey declined to keep her as the top prosecutor. An alternative mechanism which allows judges to appoint interim U.S. attorneys. So there's like two different routes. You know, one is sort of through the first assistant that we talked about before. Another is they can be triggered that the court say, oh, there's a vacancy here. We have to do this. The court rejected ABBA as being not competent enough, not experienced enough. And so that just, again, heightens the fact that this is a showdown that Trump is insisting on, you know, not getting many favors.

8:52But so far, he's been able to keep ABBA in position. One of the judges repeatedly suggested that one of the key laws at issue in the case suggested that Congress wanted unconfirmed acting top prosecutors to be career prosecutors rather than political picks. Yeah, so the idea of a first assistant being able to take over temporarily, not for permanence, but is the idea that you want to have someone with knowledge and experience to fill that position as a temporary head of a vacant office. And obviously by firing the first assistant and then naming HABA as first assistant, the Trump administration was undercutting the congressional goal of having somebody experienced to act as an officer until the president can get confirmation from Senate.

9:45I wouldn't take that argument too far because I think President Trump can appoint someone who is incompetent into that office and then just have the question of whether the Senate is going to consent or not. So that I think is not a bar to the president appointing Habba. But nonetheless, the idea of the first assistant is to ensure that someone with experience and perspective take over the position on a temporary basis. And that couldn't happen because of the intervention of the Trump administration. The Trump administration had a fallback position that regardless of other statutes, Pam Bondi, the U.S.

10:24Attorney General, could delegate powers of a Senate-confirmed U.S. attorney to HABA for a period of time. That fallback has never been tested, to my knowledge. And it seems, again, like a circumvention of the Vacancy Act. Congress has been very clear what should happen if there's a vacancy. And I agree that there is ability of officers in the administration, Trump administration, to delegate their own duties. But this is not Bondi's own duties. This is duties that are subscribed to a U.S. attorney and that Congress has set up by creating the Office of U.S. Attorney. So I don't think the fallback is actually going to work here at all.

11:04And in face of the clear steps that I mean, the convoluted steps, but the steps that Congress has set out in the Vacancies Act, you know, I think that the Trump administration is going to have a hard time persuading the court that what it did here with Habba's nomination and then renomination is going to pass muster. I mean, if you take it from what happened in the oral arguments, it seemed like the judges were questioning the government's move. One judge called it a complete circumvention, it seems, of the appointments clause. So assuming that the Third Circuit says her appointment was not lawful, the Trump administration will take it to the Supreme Court.

11:44Is there any indication what the Supreme Court would do? Have they handled anything like this? The Vacancies Act, I've always found to be very convoluted. It is. And, you know, I think the court will not be fond of dealing with the intricacies of the Vacancies Act either. You know, the whole thing is this is just a, I hate to use the expression, but it's a trumped up legal issue. Because all that Trump has to do is a pointer and let the chips fall where they may. And that's what's supposed to happen under the Constitution. So I think that the Supreme Court would be somewhat reticent to take the case and somewhat resistant simply because of the fact that the options for President Trump to cure this is just a pointer.

12:26And his refusal to do this is causing this legal morass. Can he appoint her if the New Jersey senators refuse to give a blue slip? I think he can. I think that's that's kind of a senatorial privilege, but it's not in the Constitution. And so I think that the president would be on strong ground in saying, yes, there's a long, cherished, if you will, tradition of having senators agree on appointment. But that's not in the Constitution. And so I think if President Trump said tradition, you know, be done, I'm going to appoint Habba. Personally, I think he could probably do it. The Habba case isn't an isolated incident.

13:06A judge in Nevada last month ruled that Nevada's acting U.S. attorney was unlawfully installed to her role. And we have FBI Director James Comey filing motions to dismiss the charges brought against him by Lindsey Halligan. Is the Trump administration putting all the cases that are being brought or litigated during these terms in jeopardy with, you know, continuing to hold on to these temporary acting interim U.S. attorneys? Absolutely. I mean, I think the Trump administration is acting needlessly and heedlessly because they could accomplish its goals more directly by ensuring that the Senate go back into session, which has its own problems, I understand, but just making appointments and getting senatorial consent, which is clearly the constitutional designed methodology.

14:00So they're creating a host of headaches for appellate courts and then later for the Supreme Court, and they're jeopardizing some of their goals in terms of prosecution of Comey and others. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Harold Krent of the Chicago-Kent College of Law. We'll tell you about Trump's ask of$230 million for compensation for past investigations of him by the Justice Department. Yeah, they probably owe me a lot of money. But if I get money from our country, I'll do something nice with it, like give it to charity or give it to the White House while we restore the White House.

14:40I'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. Or 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.

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17:17So while others are busy talking, we're busy building. That's Venture Global. That's unstoppable energy. Hal, let's turn to another legal issue involving President Trump. He's suing his own Justice Department for$230 million in compensation related to the investigations into whether his campaign colluded with Russia in connection with the 2016 election and his post-presidential retention of classified documents. The New York Times first reported that, but Trump has basically confirmed it with comments in the Oval Office. We have numerous cases having to do with the fraud of the election, the 2020 election, and because of everything that we found out, I guess they owe me a lot of money.

18:11This is yet another time when I'm going to use the word unprecedented. So this is the most, on the one hand, amazing chutzpah or hubris that any of us have seen because what the president is saying is because the former administration investigated my actions with classified documents, investigated my role in the Russia supposed influence of the 2016 election, that they've committed torts. They've committed torts against me, violated my privacy rights, malicious prosecution. And therefore, because of those torts, I can recover under the Federal Tort Claims Act. Federal Tort Claims Act is a government's waiver of immunity from tort suit in particularly defined circumstances.

18:55And under the Federal Tort Claims Act, before you can sue in court for a tort, you can file an administrative claim before the agency that one asserts cause the individual harm. So what this is, is an administrative claim preparatory to a potential federatory claims act lawsuit saying that I was injured by torts through this investigation in both these two contexts. And why this is so unbelievable is then it's the Justice Department that gets to decide whether to pay the claims or not so that people he can fire, his own former personal attorneys than will sit on this issue about whether he deserves compensation.

19:37So there's no court review. There's no public review. This is insider. It's like opening up the treasury, let me scoop out as much as I want to help out my family. That's what this is in essence, and it's just outrageous. But let me also say that what's amazing about this, that I'm sure the president hasn't considered, is this is opening up the same process for those who've been injured by ICE, because what people are saying is the only type of compensation allowed will be for people to go before the Federal Tort Claims Act and basically allege claims of brutality, false arrests, malicious prosecution, privacy rights invasions by ICE officers.

20:21And if I were defending those ICE officers, I would say, well, look, the president has done the same thing, almost the same theories. And if the president says we can use the Federal Tort Claims Act for his own purposes, then obviously people who've been injured by ICE officers should be able to use the mechanism despite the defenses in the Federal Tort Claims Act itself. According to the Justice Department manual, settlements of claims against the department for more than$4 million must be approved by the Deputy Attorney General or the Associate Attorney General. The Deputy Attorney General is Todd Blanche, who represented Trump in his New York criminal case and in the Mar-a-Lago classified documents case.

21:02And the associate attorney general is Stanley Woodward, who represented Trump's valet and co-defendant also in the Mar-a-Lago investigation. So the ethical issues are apparent. You don't have to be a lawyer to see them. But who's going to stop them? Not you or me. A Justice Department spokesperson said, in any circumstance, all officials at the Department of Justice follow the guidance of career ethics officials. However, Attorney General Pam Bondi fired the department's top official responsible for advising the attorney general and the deputy attorney general on ethics issues in July. And there is no replacement.

21:50And of course, the most recent appointment, individual had to accuse himself because of anti-Semitic and anti-black sentiments that he articulated. So yeah, we don't have a top ethics official anymore. There's just no break. There's no internal guardrail on this. It's a smart move on Trump, but it's a disgusting move because it just shows the problem of having no type of separation or independence. And so I don't know whether President Trump will go through with it, but he actually could scoop millions of dollars from the U.S. Treasury and deposited his account based upon this administrative claim.

22:25And he knows what's going on because in the Oval Office, he said, I'm the one who makes the decision. And, you know, that decision would have to go across my desk. And it's awfully strange to make a decision where I'm paying myself. The problem is, will we know when this happens or is it all internally done within the Justice Department? The actual payment has to be in a record. So there will be legally cognizable means to say whether or not this happened. But the deliberations don't have to be in public. So we're not going to get a sense of who said what. There's not going to be like reefs before a court.

23:03This is an internal decision by his deputy and associate as to whether and how much to pay him. But we will know that taxpayer monies will be allocated to his bank accounts. And who knew that being president would be so profitable? This is just another ingenious way that President Trump is bound to line his own, potentially line his own pockets at the expense of the American taxpayer. Unprecedented. I'll say it again. Unprecedented. Thanks so much, Hal, for joining me. That's Professor Harold Krent of the Chicago Kent College of Law. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions.

23:44Buying 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. You 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.

24:24Go 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. When you own your own business, you own every decision. Now own the card that rewards you for it. The Chase Sapphire Reserve for Business card brings the best Sapphire Reserve benefits to business owners who expect hardworking rewards. Designed to meet the needs of business owners at scale, this pay-in-full card elevates your travel experience and offers premium benefits and value toward business services that will take your business to the next level.

25:10Fuel your business and maximize rewards with 8x points on all purchases through Chase Travel, 3x points on social media and search engine advertising, annual partnership credits, and more. Make 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.

25:45Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. Never bet against American grit or American energy. Through innovation, Venture Global is not only building some of the largest energy facilities in the world right here in the United States, but delivering American energy at a fraction of the cost and a fraction of the time. So while others are busy talking, we're busy building. That's Venture Global. That's unstoppable energy.

26:22Former FBI Director James Comey has moved to dismiss the Justice Department's indictment against him, arguing that he was a victim of vindictive prosecution by President Donald Trump and challenging the appointment of the prosecutor who brought the case. Comey's lawyers argue that the appointment of former White House aide Lindsey Halligan to be interim U.S. attorney for the Eastern District of Virginia was unlawful and that the indictment is a nullity because no properly appointed executive branch official sought and obtained it. Comey also argues that he was singled out and targeted for prosecution because he's been a vocal critic of Trump for years.

27:05My guest is Abby Smith, director of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law. Abby, tell us about his vindictive and selective prosecution motions. There are two ways to attack the charging decision of a prosecutor. But first, it should be understood that prosecutors have enormous discretion in deciding who to charge and what to charge, even though as a matter of ethics, under the rules of professional conduct, prosecutors are supposed to refrain from prosecuting a charge where there is no probable cause. And prosecutors are supposed to charge crimes, not people. But Comey doesn't get to rely on a critique of the Department of Justice's ethics.

28:01He has to mount a constitutional attack on his charges. And there are two ways to do that. The first is by challenging the prosecution as selective. And people tend to use selective and vindictive together. They're actually two different things, and they rely on two different constitutional rights. selective prosecutions prohibit prosecutors from prosecuting people based on an arbitrary classification. Usually, selective enforcement has to do with prosecutions based on race or gender or ethnicity or something like that. But the Constitution also forbids, and this is as a matter of equal protection, a prosecution that is based on an arbitrary classification.