Weekend Law: Comey Indicted, Wind Farms & Hate Speech

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1:42This is Bloomberg Law with June Grosso from Bloomberg Radio. Former FBI Director James Comey was defiant in the face of a federal indictment on two felony charges of making false statements an obstruction. 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. The unprecedented indictment 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.

2:31The 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. 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. The indictment follows chaos inside the Justice Department after career prosecutors advised against bringing the charges and the acting U.S. attorney in the Eastern District of Virginia, who resigned, was replaced by one of Trump's personal attorneys, an insurance lawyer with no prosecutorial experience.

3:24Joining me is former federal prosecutor Robert Mintz, a partner at McCarter & English. Bob, what is the significance of this indictment? Well, it's enormously significant in the sense that it's the first time a former FBI director has ever been indicted. And it's also very unusual because the subject of this indictment, James Comey, has been an antagonist to President Trump for so many years now. And there was pressure, frankly, by the White House on the Department of Justice to take a look at this case and to bring charges against the former FBI director. There are longstanding, unwritten norms that have separated the Department of Justice from the White House, and all of the presidential predecessors to President Trump have at least to some degree thought to distance themselves from the Justice Department's prosecutorial decisions, certainly at least in public.

4:25They have declined to weigh in on pending cases, for example, especially those types of cases that touched on politics. And they have at least spoken publicly about the deference that the White House gives to the Department of Justice, this tradition of independence that allows prosecutors to make decisions about whether or not to bring cases based solely upon the evidence and the law without any outside influence or even the appearance of any political pressure behind the decision whether to bring a criminal case. The indictment is less than two pages, so very minimal information. What do we know about the charges?

5:07The indictment stems from James Comey's sworn appearance during a Judiciary Committee hearing on the FBI's handling of investigations into Russian interference in the 2016 election. What prosecutors are alleging in this indictment is that Mr. Comey knowingly misled senators on two critical points. First, the government claims that Comey falsely denied authorizing anyone at the FBI to act as an anonymous source to the media regarding the investigation. According to the charging documents, he did it willfully and knowingly and made a materially false, fictitious, and fraudulent statement by falsely stating to a United States senator that he had not authorized someone else at the FBI to be an anonymous source in news reports regarding an FBI investigation.

5:58The second charge alleges that Comey obstructed Congress by making false and misleading statements, basically aimed at impeding the committee's inquiry into the FBI's actions regarding the 2016 election. The third proposed count, which was an obstruction of a congressional proceeding, was rejected, apparently, by the grand jury. Court records show that grand jurors did not find sufficient evidence to support that charge, and that was dropped from the indictment, which was then revised and presented to the judge. Though false statements may sound like a pretty straightforward charge to prove, actually proving the crime of false statements is anything but easy, ask Special Counsel John Durham.

6:42Two people charged by him with making false statements were acquitted at trial. So what does a prosecutor have to prove here? To prove the case of making false statements, prosecutors will have to convince the jury that James Comey not only made false statements to Congress, but that he did so knowingly and that any false statements that he made were material to the focus of the Senate proceedings. So essentially, what has to happen in these types of prosecutions and why they are so rare is that prosecutors have to get inside the head of the person who is making the statement. They have to get inside the mind of the defendant and prove that what the defendant said was not only false, but it was knowingly false, that they knew at the time they were making it, it was an untruth.

7:28And then they also have to show that it was a material untruth. That's why we see very few of these types of cases brought and very few of the cases are successful. Might it be even tougher in this case because it's based on Senator Cruz summarizing prior testimony. Add to that, a 2018 Inspector General's report found that Comey's deputy, Andy McCabe, made multiple false or misleading statements and credited Comey's version of the conversation over McCabe's. The charges here focus specifically on questions asked by Senator Ted Cruz about testimony that Comey gave in 2017, asserting that he did not authorize leaking information regarding the FBI's investigations into then-President Donald Trump or former Secretary of State Hillary Clinton.

8:22Comey testified unequivocally to Senator Cruz. I stand by that testimony. Interestingly, Comey's deputy, Andrew McCabe, has said that Comey authorized him to leak the information to the press, according to a 2018 Justice Department Inspector General's report. Now, when the Inspector General looked into this issue and he looked at the testimony of James Comey and compared that to Andrew McCabe, they are directly in conflict with one another. And so the Inspector General had to look at the credibility of each of those speakers and look at the rest of the information that was available to make a determination as to who it believed was telling the truth.

9:03In that case, the inspector general actually found that Mr. Comey's testimony was more credible. They found McCabe's testimony not credible. In fact, they concluded in that report the overwhelming weight of evidence supported Comey's version of the conversation and not McCabe. So at the end of the day here, you've got a he said, he said situation where two people are giving contradictory evidence as to whether or not a conversation took place. And those cases are very difficult to prove because, again, the standard of proof in any criminal case is beyond a reasonable doubt. And when you've got two witnesses giving testimony that's directly contradictory to one another, it's difficult to prove that one of them is absolutely true and the other is absolutely false.

9:50And in this case, it's compounded by the fact that the inspector general looked at this very same issue and the inspector general's report ultimately concluded that it was Comey who was more credible and McCabe had not been truthful to the inspector general during that investigation. Comey could raise a defense of vindictive or selective prosecution. I know it's a high bar, but here you have the president of the United States in writing demanding that the attorney general indict Comey. And a few days later, after turmoil in the U.S. attorney's office, he's indicted. And President Trump, again in writing, celebrates that.

10:31It's really difficult to say exactly how much of this collateral evidence will be admitted and considered by the judge because none of this has really ever happened before. There was clearly pressure brought to bear on the attorney general to bring this case. Ultimately, the acting U.S. attorney in the Eastern District of Virginia presented this case to a grand jury, and a majority of the grand jurors voted in favor of two of the three counts. probably that will then mean that this case will proceed to trial, although I think we can expect the defense to raise the fact that there was this outside pressure, and whether or not a judge will consider that, I think we'll have to wait and see.

11:17The problem with that defense is that it would essentially turn the U.S. attorney and others inside the Justice Department into witnesses as to what actually motivated their desire to present this case. So while I think the optics of that are favorable to the defense, I'm not sure that a judge will eventually want to go down that road. The judge will more likely focus on the evidence itself and listen to the various defenses that James Comey's lawyers bring at trial. So you think this will get to trial? It won't be dismissed beforehand? Well, again, it's hard to say, but I can tell you that it's exceedingly rare for a federal criminal indictment to be dismissed on a motion to dismiss basis.

12:01In other words, what a judge has to do is look at the face of the indictment and decide that based upon the allegations in the indictment and based upon the evidence that the government has, no reasonable jury could convict. Now, it's possible in this case that a judge might do that. But again, the facts here are so unusual that I think it's very difficult to predict what a judge is going to do. So the defense actually has multiple opportunities to try to derail this case. They'll certainly move to dismiss the indictment on the basis of some kind of improper pressure or impropriety before the grand jury.

12:41They'll try to allege that there's not sufficient evidence to let this case even proceed to trial. If it gets past that stage, which it likely will, they then have another opportunity to move to dismiss at the close of the government's case, arguing that no reasonable jury could convict based upon the evidence that was presented. And then the defense can argue again at the close of the trial that it should not even go to the jury because no reasonable jury could convict based upon the evidence. And then there's one last opportunity for the defense. Even after the case goes to the jury, in the event that the jury convicts, they can argue to the judge that despite the fact that the jury returned a conviction here, that the evidence was legally insufficient and the judge actually has the opportunity to overturn the jury's decision.

13:30And what about the effect on the Justice Department of bringing a high-profile case like this under pressure and despite the reservations of career prosecutors? Well, I can tell you that political prosecutions in U.S. attorney's offices around the country are run by separate groups within the office, prosecutors who specialize in political corruption. And when those cases are brought against elected officials or former elected officials, they receive the highest degree of scrutiny. In other words, the weight of the evidence and the propriety of the charges are reviewed not only within the U.S.

14:09attorney's office, but also by officials in Maine justice. It gets a lot of eyes looking at it, a lot of career prosecutors looking at it and weighing in on whether or not to proceed. And that's done because prosecutors know that these types of cases, elected government officials, high-level appointed government officials, these are high-stakes, high-profile cases. And if they're going to be brought, prosecutors want to make sure that they're going to win. Because every time a case is brought against a high-level elected official or former elected official or former high-ranking government official, if the prosecution does not come back with a conviction, it damages the reputation of the department and can have repercussions about future cases.

14:57because bear in mind that all these decisions at the end of the day in any criminal case are made by jurors. These are everyday people. And if there is a general perception out there that the Department of Justice is overreaching and bringing cases that it shouldn't be reaching, jurors may become more skeptical of these cases in the future. Historically, when an assistant U.S. attorney stands before a jury, they bring a certain amount of credibility with them. They bring years and years of a reputation of the Department of Justice of bringing cases that are supported not only by the law, but by the facts.

15:38And so there is, quite frankly, a certain amount of deference that jurors often give to the government and that judges often give to the government. We'll have to see if this type of external pressure begins to erode that trust, because that can have an effect on other cases that are being brought by the Department of Justice in the future. And this is just the beginning of a long process. Thanks so much, Bob. That's Robert Mintz of McCarter and English. 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.

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16:56Go 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. 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. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions.

17:37Not 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, IBM. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a healthcare company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated, for patients and providers.

18:16Things like making it easier to get care that looks at the whole person, from primary care doctors to mental health support and even in-home care, and then using technology to make sure they all work together. Technology designed to help doctors spend less time on busy work and more time with their patients. And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. President Donald Trump has long criticized wind power, claiming it's expensive and unreliable, and that massive wind turbines are unsightly, kill birds, cause cancer, and drive whales crazy.

19:04Wind is the most expensive form of energy, and it destroys the beauty of your fields and your planes and your waterways. Darling, I want to watch Donald Trump on television tonight. But the wind stopped blowing and I can't watch. There's no electricity in the house, darling. You want to see a bird cemetery? Go under a windmill sometime. You'll see the saddest. And since returning to office, Trump has launched an attack on wind power. His administration has stopped construction on major offshore wind farms, revoked wind energy permits, canceled plans to use large areas of federal waters for new offshore wind development, and stopped nearly$700 million in federal funding for a dozen offshore wind projects.

19:59But on Monday, a major win for wind energy. D.C. federal judge Royce Lamberth ruled that work can resume on construction of a nearly completed wind farm off the coast of Rhode Island. And that the Trump administration's stop work order violated federal law because it was arbitrary and capricious following years of planning and coordination with the U.S. government. My guest is environmental law expert Pat Parenteau. a professor at the Vermont Law and Graduate School. Pat, tell us about this wind farm off the coast of Rhode Island that's 80 % complete? Correct. It's a$6 billion wind farm would be the largest in the United States.

20:44It's funded primarily by a Danish firm, Orsted. So, you know, you're talking about$6 billion of investment in American energy supply. And there was over 1 ,200 jobs associated with it. And the stop work order that the Department of Interior issued threw those people out of work immediately. So, yeah, it's 80 % complete. They need to install 20 turbines to finish it, and they need to do it quickly because the supply chain for getting the turbines here and assembled and installed, you know, they're racing the clock. It's a clock for weather, and it's a clock for getting the kind of support you need to get these turbines installed, right?

21:27So this project is designed to serve 350 ,000 homes. It's huge. It's 1 ,400 megawatts. And it's also critical to the New England energy supply going forward. So, you know, this project and Cape Wind is another major offshore wind farm that was on the books, but now it's been stalled by Trump as well. So these two wind projects are critical to supplying electricity in New England. And of course, electricity demands are going up in large part in response to the AI build out and the big, huge data centers that are sucking up so much energy. It's also designed to lower electricity bills because the biggest electricity demand is peak demand in the winter for heating.

22:14And right now, New England is relying very heavily on gas, and gas prices are incredibly volatile. So the estimate is that this project alone would reduce electricity bills in New England by$500 million. So it's crazy, because you've got a project supplying energy that's needed, lowering energy prices, providing stability. And the Trump administration comes along and issues this stopped work order, throws people out of work. And now Judge Lamberth has said, no, you can't do that. In stopping the project, the Trump administration cited national security concerns. What national security concerns?

22:57Yeah, well, you know, it was Secretary Burgum, Interior Secretary, who said it has to do with cybersecurity. And there's a concern about whether there would be undersea drone attacks, because, of course, you have to monitor not only the operation of the turbines, but the fact that you've got to get the electricity on shore. The point is that the Department of Defense has already approved the system that they're going to be using to monitor all this stuff. So this national security excuse is illegitimate. I mean, if there is really a national security issue, what exactly is it? Why was that evidence not introduced before Judge Lambert?

23:39And it wasn't. The company claimed that the Trump administration violated a constitutional right to due process and that the stop work order was arbitrary and capricious. So tell us what the judge decided. So Glamour said it was the height of arbitrary and capricious action. In other words, there was no evidence introduced to suggest that there really was a national security problem. There was no evidence introduced that the company is in violation of any environmental or regulatory requirement. This project has been through 10 years of analysis. I mean, in other respects, the Trump administration is going crazy over the delays in energy projects from environmental reviews and regulatory requirements.

24:26Well, this project's been through 10 years of it. So there's no issue here, no legitimate issue for why this project shouldn't be completed and come online. The Trump administration usually appeals every federal district court's order that goes against them. Do you think the project can be completed before an appellate court or the Supreme Court intervenes? I mean, I would have expected to have seen an announcement from the Trump administration that they were going to appeal, but they haven't. So that suggests to me that perhaps they've rethought this. And at least as regards this project, they're willing to back off and let it go forward.

25:08I can't be sure of that. Obviously, I wouldn't take that to the bank necessarily, but it may be that at least on this one, they'll let it go. Recently, the Trump administration has moved to invalidate or reconsider permits for other wind projects near Massachusetts that have yet to start construction. Two weeks ago, they asked a court to cancel the approval of a$6 billion wind project planned off Maryland's coast. I mean, are they targeting all of these wind projects? Oh, yes, they are. Definitely. Not just wind, but solar as well. So it's across the board, though, and Burgum and the Department of Energy are under orders, executive orders from the president to oppose renewable energy development.

25:55If there truly was an energy emergency, why on earth would you stop projects that are, you know, not only in the pipeline but under construction and for which money is coming in from outside the United States to build them, you know, in electric vehicle plants in Georgia coming from South Korea, etc. etc. So this war on renewables makes no sense. And so in light of all that, how big a win is Judge Lamberth's decision? Oh, I think it's a huge win for not only this project, but the other projects you mentioned that are on the books for New England. I don't know whether it will revive all of them or not.

26:33But this would be the first order coming from a federal judge saying to the Trump administration, you simply can't do this. It's certainly granting them a stay of execution. According to a Bloomberg analysis, altogether more than 15 ,000 prospective and current jobs tied to win projects in New England are under threat from the potential shutdowns. And there are all kinds of other effects. For example, you know, Massachusetts has a state organization has spent more than$20 million in total offshore wind job training programs. So the ramifications are widespread. Yes, they are for jobs, for investment, for lowering electricity bills, for making energy more affordable for American consumers, right down the line.

27:25Never mind climate, never mind environmental impacts of energy development. If you think about gas, right? Where does the gas come from? Well, some of it comes from the Marcellus Shale in Pennsylvania, in Maryland, but a lot of it comes from Ohio and further west, and that's got to get there by pipeline. So you've got to build all of this infrastructure, which is very expensive, and then you've got to hope that gas prices remain stable, which they don't. They're incredibly volatile because we're exporting a lot of the gas. That's another priority of the administration. They don't want to just produce the gas for U.S.

28:00consumption. They want to produce it to send it overseas. So all of these factors really support the idea. If you want to have a mixed energy portfolio, you know, a lot of us are concerned about over-reliance on gas and certainly coal and oil. But the point is, you can have all of those different ingredients to a sensible energy policy, but that's not what we have. We have a single-minded determination to build as much gas and revive the coal industry that's going to drive up consumer prices, never mind the environmental impacts. Can what the Trump administration is doing here with wind and solar power be unwound if the next administration supports renewable energy?

28:46You know, one of the biggest problems is if you discourage this investment, you discourage the banks in the United States and elsewhere around the world. Some of the other banks around the world have even more money to invest. You know, if you're discouraging investment in energy supply, that is going to have long-term impacts for sure. Whether or not that can be turned around is an open question. But right now, the evidence is that we're not only not building systems that we need, but we're discouraging people from investing in those systems. And Pat, what's the landscape for future legal actions as far as wind farms are concerned?