Political Enemies and the Weaponization of the DOJ

0:00The term vindictive prosecution is a term in law, not in statute, but it's in Supreme Court case law. It's somewhat different, but related, and it can overlap. Think of it as spite. You can't prosecute out of spite.

0:18Pamela Karlan:This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. Today, it's great to be joined by my colleague, Bob Weisberg. Bob is the Edwin E. Huddleston Jr. Professor of Law. The junior there is sort of like the junior in Leland Stanford Junior University. We're not actually a junior university, and he's not a junior professor of law. Indeed, he's one of the most longest serving members of our faculty.

0:57Pamela Karlan:He's also the faculty co-director of the Stanford Criminal Justice Center. So welcome to the show, Bob. Great to be here. Yeah. So today we're going to be talking about two recent indictments, one of them against James Comey and the other against Letitia James. And I think maybe the place to start, Bob, is just by talking about how does the government go about getting an indictment? Well, a prosecutor and U.S. attorney or an assistant U.S. attorney goes to a grand jury. In theory, the grand jury is convened by a federal judge, but it will always be done at the behest of the prosecutor. And the prosecutor will put on witnesses who will, if things work out the way the prosecutor wants, convince the grand jurors that there is probable cause that a particular person has committed a crime.

1:53It's not an adversarial hearing. It's one-sided. But if the grand jury does indict, then a formal charge has happened and the case could proceed to pretrial or ultimately trial.

2:05Pamela Karlan:And normally in a grand jury, they don't have to be unanimous to indict somebody. And they don't necessarily hear both sides of a case. Although in general, I mean, should a prosecutor be presenting to the grand jury? Sort of enough evidence for the grand jury to know what the arguments are on both sides? Or is it really just supposed to be, here's my best shot? Well, there's no law that requires the prosecutor to present counter arguments that would come for the defense. In fact, the Supreme Court has clarified that that's not necessary. The DOJ guidelines, which are not binding as matters of law, but they are administratively binding on federal prosecutors would suggest that no prosecutor should try to win an indictment unless the prosecutor is, in all good faith, convinced that guilt can be proved beyond a reasonable doubt.

2:58But that still leaves open the possibility of pro-defense arguments that the grand jury will never hear. State law, by the way, differs from state to state. In some states, there is some opportunity for the person who ultimately becomes indicted to raise counter arguments.

3:15Pamela Karlan:And I think also there are often a number of different grand juries at the same time sitting in a particular district. There have been some reports that in the Letitia James case, they presented some stuff to a grand jury in the Eastern District in Norfolk and then presented other stuff to a grand jury in the Eastern District of Virginia and Alexandria. Yes. Well, it's a question of venue. And the Letitia James case, which is all tied up in obscure matters of mortgage applications, there were two different, at least two different properties involved. So that means that it's perfectly legitimate for the prosecutor to go to a grand jury in a place where the alleged crime might have occurred with respect to a particular piece of property.

4:01but obviously it gives the U.S. attorney a bit of an opportunity for so-called forum shopping for friendly grand juries.

4:08Pamela Karlan:Yeah. And generally when prosecutors go to a grand jury, there's an assistant U.S. attorney who's sort of been with the case for a while and goes and presents that case. And these two cases seem to be different. Can you explain a little bit about what's different about these two cases? Well, what's different is a lawyer named Lindsay Halligan. Now, as has happened a lot in the Justice Department in recent years, when there has been a push from the attorney general, or frankly, and certainly truly in this case, the president, to push for an indictment. Here, the so-called career prosecutors generally said, no, there's nothing here.

4:45We think there's no possible way of making an argument that guilt can be established against either of them beyond a reasonable doubt. And certainly there's no probable cause. Now, so Halligan then was inserted as the U.S. attorney in the Eastern District, replacing a longtime civil servant, Earl Siebert, who refused to file the charges. And Halligan couldn't find, apparently couldn't find anybody on her U.S. attorney staff to do the work. They just didn't believe it. So she has her name on the indictment and appeared before the grand juries herself.

5:24Pamela Karlan:This is really quite unusual for the actual U.S. attorney. Experienced, you know, people experienced in federal law say this never happens. The U.S. attorney is, of course, the head U.S. attorney is a manager, okay, would never have the time to do exactly what you refer to, Pam, follow the case thoroughly and learn all the details of the investigation to make the case. So it may have been a dramatic move by Halligan, but it actually looks like a rather feckless one. Well, and then, of course, she then went to present the indictment to the magistrate judge, and she had two indictments with her in the Comey case.

6:01Pamela Karlan:One indicted him on two charges. We'll get to the charges in a moment, the other on three. And she seemed to hand in both and didn't really understand what was going on at all. Yeah. Well, ultimately, we're talking about the one with the two charges, though. And it's been criticized, shall we say, for being one of the thinnest and most obscure indictments ever seen. Yeah. I mean, usually in a big case, and I certainly remember this from when I was at the Department of Justice and the Civil Rights Division had some major criminal prosecutions, for example, of the officers in the George Floyd case or the officers in the Ahmaud Arbery case.

6:39Pamela Karlan:The indictment was pretty – it told the story of here's what we think happened and here's what we're charging you with. And I have to say reading the Comey indictment is one of the shortest indictments I've ever seen in something that isn't just a sort of cookie-cutter bank robbery case or drug bust and buy. Absolutely right. Now, the two charges there and their relationship to each other is a little obscure. One flat out says that he lied when he testified before the Senate in 2020, but it doesn't say much about the lie. But it doesn't tell you what the lie was. It doesn't say what the lie was.

7:21And in fact, we know indirectly what the alleged lie was. And there was certainly a narrative to tell there, but it wasn't told. And you're quite right that prosecutors, although they're not legally required to do this, usually will tell a story with a fair amount of factual information, much of which, of course, bears on evidence that would be presented by the prosecution at trial, because, of course, they want to make a good case before the grand jury. The other charge is interesting. It's an obstruction of charge in terms of interfering with a congressional proceeding. Now, its relationship to the first one is a little unclear.

8:01Obstruction can mean many, many different things. Obstruction is an extremely complicated legal concept. The obstruction statutes passed by Congress are Byzantine, spaghetti-like. Mix your metaphors any way you want. It's possible for a false statement or perjury to also constitute obstruction. But if that's what's going on here, it's kind of a double charge for the same alleged act, which is supposedly lying in 2020. Yeah.

8:29Pamela Karlan:And I think when he was actually arraigned, Mr. Comey's lawyer said, essentially, we don't know what exactly he's been charged with here because it's not clear what statement they're talking about. It's not clear what proceeding they're actually saying he obstructed or the like. Why do you think the government did such a spare indictment here? I don't know, except for the possibility that Lindsay Halligan didn't know much of anything about the case. Somebody mumbled a few things in her ear as to what Pam Bondi, at least in the Comey case. By the way, I say at least in the Comey case, because it appears that Pam Bondi wasn't even consulted about going to the grand jury on the James case.

9:14Somebody just whispered in her ear, well, this is kind of sort of what we think happened. I don't want to accuse her of prosecutorial malpractice, but it's just unbelievable that she would do that. And I don't have a good explanation.

9:28Pamela Karlan:Yeah. And so we've got these two charges against Comey. And just for our listeners who are wondering why, if this is about his testimony, was he charged in the Eastern District of Virginia? I think it's because he testified over Zoom. Yes. The testimony was during COVID. So he's testifying from a house in Virginia suburbs. Presumably his home in Virginia, right? Yeah. And I guess from the administration's point of view, that's probably lucky because they've been having some really bad luck recently in getting grand juries inside the District of Columbia to indict. Right. However questionable are Lindsey Halligan's credentials, the U.S.

10:08attorney in D.C., Jeanine Pirro, an interesting character, you know, a Fox News pundit and frankly, a pretty vulgar propagandist when she was on Fox News. nevertheless has experience as a prosecutor. She had been the prosecutor in Westchester, head DA in Westchester County, New York. But she keeps losing, or her office keeps losing, possible indictments in D.C. because the grand jurors, the local citizens, just say no. At some point, she even tried a maneuver whereby she went to the local superior court, which is a special quasi-state court in D.C., but still under federal authority to get an indictment.

10:50But yes, the Easton District looked a little riper and proved only barely riper in the sense that she, Halligan, was able to secure the Comey indictment apparently with just 14 votes out of 23.

11:05Pamela Karlan:Yeah, which is rare because, as you will remember, having just alluded to New York, your home state from many years ago, that's the source of the famous Saul Wachler quote about any DA should be able to get a jury to indict a ham sandwich. Yes, that ham sandwich joke has been around so long that I thought - I know they started out with fresh pork and it became ham. Right. I thought it needed to be retired, but there was some kind of sandwich involved in a recent indictment, I seem to recall. So it came to reality. Anyway. Anyway, so we have the indictment in the Comey case. Normally, there's a speedy trial act that It says that the case should go to trial between 35 and 70 days.

11:46Pamela Karlan:I think it's after the indictment, although it's a little bit like an NBA game or an NFL game. The clock stops a lot. Yeah, actually can take longer than that. But the judge has set the trial there for not very far out. January, I believe. Yeah, in January. Before we get to the trial, though, there are two kinds of motions in addition to the Motions, for example, asking the government to actually specify what precisely Mr. Comey's alleged to have done wrong. There are two kinds of motions that people are talking about that they think may get filed here. One is about selective prosecution and the other is about vindictive prosecution.

12:25Pamela Karlan:Can you kind of explain to our listeners what those are, how they differ from each other and how those things normally get resolved? Great. And by the way, we'll throw in a third if we have time, which is to talk about the motion to disqualify Ms. Halligan. Oh, yes, yes. I'd forgotten about that one. Now, selective prosecution is an unfortunate term because it's often invoked by defense lawyers, you know, to just signal a terrible, terrible thing. All prosecution is selective in some sense. Prosecutors can't possibly prosecute all the cases that are able to achieve at least a probable cause standard.

13:00It's clearest if you talk about equal protection. The most famous case on the subject, U.S. versus Armstrong, was one in which in a cocaine case, the defendant argued that white people were not getting charged with the exact same crime that he was getting charged with. And that could constitute a true equal protection claim if it could be proved that the prosecutors were purposely discriminating on the basis of race. Armstrong did not win, but at least he kind of enabled the setting out of the principle. One of the big issues there was discovery. In other words, the problem of similarly situated people, black and white people who had done the exact same crime, that's very hard to establish factually or empirically.

13:44And the first hurdle a defendant has to overcome is just to get enough discovery to establish that point. But it's possible. The other area where selective prosecution has been deemed illegal, there have been a few cases, would be where the defendant has arguably exercised a right of free speech. And other similarly situated people who committed the same or allegedly committed the same crime didn't speak up on a matter of any public notice. The most famous case there involves draft protesters, some who had been vocal. I just say draft non-signers, people who did not show up for the draft, some who were publicly vocal and some not.

14:24And the idea there, it's not exactly equal protection, but it's like it in the sense that you have to prove the similarly situated. And therefore, the real motive for the prosecution is allegedly to punish someone's exercise of free speech. In both those situations, it's in a sense you're getting into the mind of the prosecutor, which is hard to do. It's a subjective phenomenon. And the reason it's hard is that the defendant has to establish certain objective circumstances from which an inference could be drawn about this bad motive by the prosecutor. The difference here may be that President Trump has, shall we say, offered a fair amount of data about his subjective thinking.

15:08And that might make this an unusually strong case.

15:12Pamela Karlan:Yeah, there's this amazing post he did on, I guess, on Truth Social and maybe also on the thing formerly known as Twitter. It was sort of like it was supposed to be people think it might have been a private email or something to Pan Bondi. But instead, he broadcast it to the world and said, it's time for you to go after these people. You ought to make Lindsey Halligan, who likes you a lot, the person to do this. And it might be easier to get discovery here than in a case where - It's almost as if that itself is a great piece of discovery that came free, and it could be the basis of more. Now, the term vindictive prosecution is a term in law, not in statute, but it's in Supreme Court case law.

15:54It's somewhat different, but related, and it can overlap. Think of it as spite. You can't prosecute out of spite. Now, the assumption, as with selective prosecution, is that, at least putting aside the problems with this particular indictment, assume that the charge is otherwise valid. But what's the prosecutor's motive for bringing it? And the clearest case would be where the cases at a certain point, either the defendant hasn't been charged or maybe has been charged with a lower crime. And at some point in the proceedings, the defendant exercises a legal right, usually a constitutional right, filing a motion to dismiss, filing a motion to suppress evidence, whatever.

16:34And in response to that, the prosecutor files a charge or files a bigger charge. Now, the term vindictive is a funny kind of psychological term, but the assumption is that it's a violation of due process if the clear causal motive of the charge is retaliation, if you will, against the defendant for exercising a constitutional right. And the constitutional right here of James Comey is really, well, to say whatever he wants, to take actions in his role as FBI head, and so on and so on. So there's a difference between the two, but they share the characteristic that it's usually hard to prove because you have to draw the subjective inference from objective evidence, except here you got all the subjectivity out there.

17:21Yeah.

17:23Pamela Karlan:And I think it's worth kind of explaining something to those of our listeners who aren't familiar with the Justice Department, that really from the end of the Nixon administration up until this second Trump administration, there was a general rule inside the Department of Justice that although the president sets the kind of overall agenda for the department, so we can say, I want more fraud prosecutions and fewer drug prosecutions or more drug prosecutions and fewer white collar prosecutions or the like. or I want you to defend the constitutionality of the Defense of Marriage Act, or I don't. There was a general rule, and it was kind of a general written down rule that the president and the White House did not interfere in the decision about individual criminal prosecutorial matters, that the White House might be notified if it was going to be a high profile case, you know, we're going to indict, you know, James Comey tomorrow or like, But there was no back and forth between the White House and the actual prosecutors bringing the case, that that was thought to be something you left to the civil servants and the U.S.

18:33Pamela Karlan:attorney who was managing them or the assistant attorney general that was managing that section. And that's been blown out of the water by this administration, which has really, I think, taken to heart the statement from the Trump against United States immunity decision that the president has the authority to direct the Department of Justice. Right. You use the term rule. It was a kind of assumption, a guidance rule, if you will, within the Department of Justice, therefore not binding as a matter of law. Another term we hear is a norm, or as we say in my old neighborhood, a norm, which nevertheless was held virtually sacred by generations of prosecutors.

19:12But norm breaking has been pretty much what Trump has been about. Yeah.

19:17Pamela Karlan:And there's, of course, this very famous speech given by Robert Jackson when he was attorney general before he became our chief prosecutor at Nuremberg and also a Supreme Court justice that talks about the role of the prosecutor and says, look, the problem is you should never have the prosecutor should see the crime and then look for the perpetrator of the crime rather than seeing a person and then looking for what crime you might be able to charge the person with. Letitia James' case, it really does seem like that latter thing is happening here. Oh, my gosh, yes. Now, just a word about that indictment.

19:51You'd have to be an expert on real estate finance to understand its nuances, and I am certainly not that. But it has nothing to do with her public role as AG of New York, except to the extent that she, of course, brought actions against Trump. And again, the motive would be, you know, imputed to Trump. Let's find something on her. Well, they certainly couldn't find anything on her in her public role, so apparently they just dug into some of her financial records. She bought several properties, one in New York, but I think two in Virginia. And there were very technical questions about whether there were mistakes in some of the papers she signed, largely having to do with when or whether she noted that a particular place she was seeking a mortgage on was to be her principal personal resident.

20:43The details are mind-numbing. There were several properties. There were many, many different documents. As with Comey, so with James. The career prosecutor said, there's nothing here. It's not entirely clear that the statements she made were false anyway because of some very odd complexities or vagueness in some of the Freddie Mac or Fannie Mae rules about mortgages. Either way, though, you can't prove fraud. And by the way, the crimes there would be, it's essentially a kind of bank fraud, but they throw in a wire for a charge and a mail for a charge. So it comes to the same thing. They're incredibly hard to prove because they have a very, very high mental state requirement.

21:25And without going into the criminal law weeds, you know, it would real intent to defraud for material gain, causing material harm to the victim. The victim, let's say, being the bank. Well, she made other statements in some of the applications which were perfectly consistent with the idea that this was not to be her principal residence, though she might share it to some extent with the niece. So if anything, she would have done a horrible job of trying to defraud the bank because she actually gave them a perfectly clear set of facts. And it's clear that any prosecutor would say, hey, if you've ever done mortgage financing, I've done it a couple of times.

22:06You sign nine million pieces of paper that they rush you through. And the mental state requirement for proving fraud is unbelievably high. And the general consensus of the U.S. attorneys was that this case is even weaker than.

22:20Pamela Karlan:Well, and it started off as a case about the property in New York and a different property in Virginia. Yeah. And then her lawyer sent this public letter with a bunch of attachments to it that kind of blew those cases out of the water. And then they came up with this one. And I guess I guess I've kind of two thoughts about this. I'd love your reactions to one is it all reminds me of the title, the title of that wonderful Harvey Silverglate book, Three Felonies a Day, which is essentially about the extent to which our criminal law, if the government wants to go after somebody, They can almost always find something you've done wrong or arguably enough something that you might have done wrong in the last five or six years before the statute of limitations runs.