FBI Vet Comey in Court For Charges Trump Demanded

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1:00John Flannery:Welcome to The Beat. I'm Ari Melber, and we are following what it looks like when Donald Trump calls in an indictment, which he publicly did, a Nixonian admission that he wanted someone he opposes or doesn't like to be charged. James Comey, that individual has been charged, and today it turns to court. It's really happening. The former FBI director appeared in court for the first time since the DOJ indictment. So this is the beginning of the case. This is the beginning, if you will, of the process that leads to a trial if the case holds and isn't tossed before then. He pled not guilty today to the charges of lying to Congress back in 2020 around issues that stem all the way back to Trump's first term.

1:41John Flannery:It's a pivotal moment in how this DOJ has continued to bend to things that we know from the public record, its own prosecutors and internal staff appointed by Trump thought were wrong. bending to things that they didn't want to do, sometimes having to change staff, Trump ousting the prosecutor there in order to get what he sees as his revenge indictments. Now, Comey has long been the subject of clashing with Trump all the way back to how he did what he and others saw as his job. And remember, these issues have long already been investigated. They've been reviewed by the DOJ's internal process.

2:18John Flannery:They were reviewed by a prosecutor are handpicked by Trump, John Durham, and other reviews. None of this, whatever one thinks of it, has ever been seen by any other prior process to involve any misconduct of a criminal nature by James Comey. And yet that is what Trump demanded be charged and what got charged. So we take a look back at a history that goes all the way to Trump's first presidential campaign. The FBI director told Congress he is investigating whether there was any coordination between people associated with the Trump campaign and the Russians. The FBI, James Comey, has been fired.

2:56John Flannery:Look, I've seen the tweet about tapes. Lordy, I hope there are tapes. Led to the indictment of dozens of people. The head of Trump's campaign was a grave counterintelligence threat. Former CIA director John Brennan and former FBI director James Comey are under criminal investigation. In the Trump era, I've been investigated a lot, audited a lot, and so it's not my first rodeo. Former FBI director James Comey has just been indicted on two counts. There are costs to standing up to Donald Trump, but we couldn't imagine ourselves living any other way. We will not live on our knees. the last statement there was comey's video presentation a kind of video public accounting for what he says are the costs of opposing donald trump and let's call it like it is let's be straight james comey has been controversial on the left right and center for a bunch of stuff but nobody who honestly has reviewed him or criticized him and he has been criticized for his leadership, for his approach to the FBI on this and other newscasts.

4:01John Flannery:But nobody who seriously looked at this thought there were crimes there. Remember, there's no new evidence that we've seen yet. If they have new criminal evidence, we'll report on it. But all of this goes back to him testifying to Congress about prior activities regarding talking to the press, press releases, press leaks, right? An authorized statement versus a leak. But none of that has ever led, as I remind you, to anything that anyone thought was a crime, including Donald Trump's handpicked prosecutor, John Durham. So it's important to keep that in mind, because whatever Comey's popularity, all of the evidence that we have in public suggests this is the old stuff that even Trump's people didn't think amounted to evidence to charge that now is being charged because the president phoned it in, possibly unlawfully, possibly illegally.

4:54John Flannery:Indictment related to that history Was not brought in the normal course By the normal prosecutor One prosecutor ousted Another brought in And before she had what any lawyer would tell you Was enough time to go through the facts And the evidence And the case And the witnesses She just rushed in for a deadline And charged it And no one else would sign their name Next to what she put The Times reports Two prosecutors in North Carolina Now have been assigned to the case Because she had A hard time getting anyone In her new office to help Think about what the Times is reporting. Her new office is in the Trump administration.

5:26John Flannery:These are all Trump people, but many of them say it's not a real case. You might violate your legal duties to pursue it, or they don't want to be a part of a clunker that could turn into a loser. She did not speak in court today. She was reportedly in her chair nodding when a junior prosecutor represented the department. She was the only prosecutor to sign the indictment. I'm going to remind you of that, like I said there. and the indictment itself doesn't have a lot of evidence. It's two pages. It's about congressional testimony. Comey's team is out there going on offense today and with all due respect, they have a legal team, several DOJ lawyers with far more experience than the new prosecutor that Trump called in.

6:08John Flannery:They say they haven't even been given real specifics on the charges, that they are going at the whole case seeking its dismissal and they're going to use Trump's words against him, saying that they have evidence to prove, and these aren't just any random defense lawyers. These are some very skilled, decorated DOJ veterans, one who worked as a Republican, Fitzgerald, investigating high-level matters. They say they can prove, they think, that it's a, quote, vindictive and selective prosecution. They also say this new hand-picked prosecutor might have problems of validity. The government doesn't have a lot of details, but they claim they need more time to introduce what they call classified evidence.

6:47John Flannery:The judge already on this first day leading the trial, quote, skeptical of the claim that the nature of this, remember, we're talking about public testimony about issues that have been discussed for years. If this weren't so important, some people might say, I'm a little tired of stories about the Clintons and James Comey. But of course, this is Trump's revenge tour. This is what he wants everyone to focus on. And the judge is skeptical that there's going to be new classified evidence. The Times said it kind of projected an air of, polite impatience on the first day of Trump team's effort to prosecute the former FBI director.

7:22John Flannery:Quote, this does not appear to me to be an overly complicated case, the judge added. Again, striking at the obvious, there isn't a ton of new evidence against the director. What there is, is old evidence that was previously dismissed, found lacking by perfectly motivated Trump appointees who, had they had the case before, would have presumably been willing to bring it. Indeed, they take an oath to bring cases that are supported by the evidence. Now, a new prosecutor, lonely in her office, doing Trump's bidding, and today seemingly outgunned by some of the more experienced counsel against her, is going to try to take the director to trial.

8:02John Flannery:That trial, if there is no intervening event, will be set for January. We're joined by Andrew Weissman, former FBI general counsel and Mueller Pro prosecutor. Welcome. Nice to be here. Let's start with the little bit of new. We did hear for the first time from a judge assessing what is a very thin slice of this, because we're not at trial. What did you make of the judge's reception today? Well, what he was responding to was the first of what I believe will be many efforts by the government to slow the case down. They were clearly not doing what normally a prosecutor does, which is like, we're ready for trial.

8:44Let's go. Let's set a date. Remember, this is the so-called rocket docket. And so the government said, Judge, you should delay the trial because it's complex under something called the speedy trial rules. If you declare something complex, The government's given more time. A false statement case, which is two counts, is very unlikely to be a complex case. And that's what the judge is reacting to. But the news here, the sort of the import of it is the government is going to be, and I think this is going to be the first of many efforts by them to slow the case down. If they don't have a winning hand, any day that the case is not dismissed or they do not lose the case at trial is a good day for the government.

9:30This is an unusual position for the government to be in. And I thought they looked very weak today in a false statement case showing up and saying, Judge, please delay the case because it's complex. I mean, that was facially not terribly plausible.

9:47John Flannery:Right. You're saying that alone makes them look bad. And on simple cases, this is clearly a simple case. It's not a RICO case. It's not a bunch of organizational evidence. It's a couple of discrete facts, as the judge said. And as you know, having been a prosecutor, Andrew, there's a bit of what they sometimes call the Lauryn Hill rule, where confident prosecutors say, ready or not, here I come, you can't hide. And you're telling us we're getting the opposite from the Trump prosecutor saying, I need more time. I'm basically not ready. And maybe they are a little bit afraid. They're the ones hiding from what this could ultimately look like.

10:24John Flannery:With that in mind, you can say, OK, Weissman said this. The news anchor said that. What about more Republican veterans of the DOJ? Here was new from Andrew McCarthy, well-known, I'd say pretty conservative prosecutor type. But here's what he said. I don't believe they have a case, Bill, based on what we've seen in the indictment and what we know from the public reporting. But now we're going to find out. I just think that factually they have a very difficult time making this case. Andrew? I agree. And I point out just another aspect of the weakness, which is one of the things that they said to the court, the government did, is another reason to delay this case is because there's going to be so much classified information.

11:13And we're going to need to do litigation under what's called the SEPA statute, which governs how to deal with classified documents. again that remains to be seen but that does not seem to be the case here that this is going to be a case that involves lots of classified documents so between the statement about please exclude speedy trial time and give us more time because it's complex and the government saying oh there's lots of classified documents so that's going to involve this complicated process about how to deal with classified documents. Those are both weak statements. And it's understandable because the trial team, as you noted, Ari, are not the trial team that had been on the case investigating it.

11:57They are brought in from outside. So they clearly are not ready. But that is so unusual. I want to make sure people understand. The government, when you indict a case, you need to be ready. Your only responsible response to the court is when you set the trial date, we will be ready. Otherwise, don't bring the case. And so it was really quite a weak showing on their part.

12:24John Flannery:In Watergate, Nixon ultimately turned over tapes, which showed him in his own voice admitting to abusing government power and the FBI towards his political ends. And that, along with other things, ended his presidency. Donald Trump has done that on the same issue, misusing DOJ FBI to go after opponents in public. And that could also doom this case. I want to read from the New York Times account again, saying Trump's attacks on Comey may undermine the case. While vindictive prosecution motions, it says, are notoriously difficult to win, the president's voluble vitriol and his incessant need to be on the attack could provide defense lawyers with an avenue to protect the very people he most wants to punish.

13:12John Flannery:Your legal outlook on that, everyone can discuss why it's bad for democracy and the rule of law. It's very Putin-esque to be ordering in hits on people. but legal hits. But on the law, you, I'm sure, have faced down those kind of pretrial motions in different circumstances. I'm sure you've usually said in your role, obviously a bit different than this case, hey, let's get to trial, stop attacking the government. That's what we usually hear from prosecutors. And as mentioned, those arguments don't always prevail. Your thoughts on the strength of that argument here and how the judge might see it?

13:47Sure. Well, a vindictive prosecution motion generally fails. It is very, very hard to meet the legal standard. But if there is any case that appears to warrant a vindictive prosecution argument, this is the poster child for what appears to be a solid, a really rock solid vindictive prosecution case. Where I think this is going is the government is going to make a motion saying, as they said today, that this is a vindictive and selective prosecution and they want discovery. That's going to be key. They want the discovery to help prove that case. By the way, Abrego Garcia has made the same motion and he was granted discovery when Judge Crenshaw at Tennessee said, yes, you have made a prima facie.

14:37You've made enough of a showing of vindictiveness. And I think that is where you're going to see. Yeah.

14:44John Flannery:When you say discovery, you mean they could get inside the Trump DOJ files. Exactly. And that is exactly where the battle will be, because we know that the government from many other cases in Trump 2.0 does not want to disclose this. And so I think there's going to be a sort of battle royal on the issue of not just the documents that are the career people in the Eastern District of Virginia who said there's not enough evidence. The defense is going to want that. But they're going to want the communications with the White House, which they will say we're ordering them to go forward no matter what.

15:27and that's where I think there's going to be I think what the government's going to do is not turn those over I think they're going to try and appeal that they're going to try to use that to delay the case, it'll be yet another way for the government to try and delay going to trial just remember Ari that is so unusual the government, if you think someone's guilty they're thinking let me think of three ways not to go to trial they should be, that's usually what the defense wants

15:57John Flannery:No, I mean, for anyone who's ever watched somebody fake getting into a fight that they don't want to get into, it's giving hold me back rather than legally a peaceful court fight, obviously, but legally saying, no, they're ready to go. And you're pointing out, again, multiple avenues that Comey team can exploit in this case. Andrew's agreed to stay. We're going to add another legal heavy hitter, the former head of the criminal division, Leslie Caldwell, when we all return together in 90 seconds. running a business is hard enough so why make it harder with a dozen different apps that don't talk to each other introducing odoo the only business software you'll ever need it's an all-in-one fully integrated platform that makes your work easier from crm accounting inventory e-commerce and more and the best part odoo replaces multiple expensive platforms for a fraction of the cost that's why over thousands of businesses have made the switch so why not you try odoo for free at odoo.com.

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17:59John Flannery:We're back with Leslie Caldwell, the former head of the DOJ Criminal Division and longtime prosecutor, former FBI General Counsel, Andrew Weissman, still with us. Leslie, you probably have not seen a case quite like this, even though you've overseen so many high-profile cases. When you see a former FBI director going to trial like this, after the president called for the case? What runs through your mind, and what did you learn from what was a brief hearing today? So I think everything that I thought when the case was indicted in a very hasty manner by a prosecutor who obviously knew nothing about the facts and a grand jury that barely voted an indictment, this just reinforced that this case is like none other.

18:48Hmm. There's I've I've never heard of a case where the president basically ordered the attorney general to indict a case. You never you never saw anything like that. Nothing. I've never even seen a case where the president was even in the mix of deciding whether a case would be brought or not or even was aware of certain details of investigations. So this is completely unprecedented. And, you know, we'll see what happens. I think that it's hard to imagine that they actually have a real case, given the history of the case and the circumstances leading up to the indictment. And as you know, the prosecutors are going to actually do the case are being parachuted in from another district and have no experience with the case at all.

19:27John Flannery:So I know you to be such a straight shooter. Let's talk about James Comey a little bit, because being controversial, being unpopular, being someone who many people thought didn't do his job perfectly. I think that's well established. People have views about how he led. It's supposed to have zero to do with the criminal standard for indictment, right? I mean, Trump seems to be blatantly admitting and capitalizing on the idea. And Jared Kushner had said previously, oh, well, a lot of people don't like this guy. Like that makes him a quote, good target. Yeah, that's completely wrong. And that's not how the federal criminal justice system either works or should work.

20:08But they're doing that now. But that's nothing that's ever been done before so blatantly. And I'm not saying there's never been any bias in prosecution, but I'm certainly saying that there's never been a situation where the president of the United States is saying, nobody likes this guy. He's a bad guy. He's a dirty cop. Some of the other comments that the president's been making. I've never seen anything even remotely like that. When you're a prosecutor, you tend to form opinions about whether you like the people you're targeting or you don't like them. And sometimes you actually do like them.

20:40But that's not at all an appropriate consideration in deciding whether to bring a case.

20:45John Flannery:You think this case goes to trial? I think there's a pretty good chance. I agree with what Andrew was saying earlier about the vindictive prosecution motion is probably the best possible facts for the defense team, given the extreme difference between this and any other vindictive prosecution case. and even the Albrego Garcia case that Andrew referenced is not as extreme as this. It's extreme in different ways. So I think they could prevail on that motion, but I do think they will go to trial and hopefully they'll go to trial sooner rather than later if they're actually going to go. And you've seen a lot of cases based on the current information we have.

21:25John Flannery:You think defendant James Comey can beat this case? Yes. Based on what we know now, I think he will. hmm andrew i have the interim question to get to with you but first any response you want to the points miss caldwell raised i just want to make sure people know that when leslie says this she has served under republican and democratic administrations she was head of the enron task force under the bush administration um and so when she's saying this hasn't happened before That is in a bipartisan way. That is not how the Department of Justice operates. It's nothing that Leslie or I have ever seen.

22:05The idea of removing your own U.S. attorney, overruling the career people and putting somebody in and indicting within one day and then showing up in court and basically coming up with every excuse, including, you know, almost to use hyperbole, the dog ate my homework to try and delay the case. it really signals a complete abuse of the Department of Justice and the criminal justice system to use as a weapon. And again, it's just topsy-turvy in terms of what you would expect. It's the defendant who never wants to go to trial and the government who wants to get the person to trial.

22:45John Flannery:Yeah, all important points for both you. And again, we're at this point. It's past the breaking point on the DOJ side. In the military, we may still be following court rulings to figure out where are the new lines for troops in the streets. And folks can make up their mind about that. But on this legal side, it's broken. I want to put up just the faces of the many people. Anyone can debate any individual case. But here we are inside the first year of the term, and you got the indictment of Comey, the search of John Bolton, charging a mayor, then dropping the case hastily, which again speaks to what we were talking about, whether the Comey case even goes to trial.

23:21John Flannery:uh, charging a Congresswoman, that case is open, uh, and a bunch of other folks facing threats and probes. It's, it's not normal and we're past that breaking point. Andrew, uh, to make a mildly nerdy joke or reference, most people don't want to talk about the interim succession rules inside the federal government and the DOJ. I know you to be legally nerdy enough that it might hold some interest for you. And like other arcane issues in law school, it don't matter until it do. So the Times is reporting, and Comey's lawyers are bearing down on this, whether they actually have a type of more technical legal issue here.

24:01John Flannery:We talked about the big stuff, but the AG can install someone as a, quote, interim prosecutor, but only for 120 days, the Times notes. after that expires. I think we have this. Yep. The law says a federal court can then decide who serves as interim. That's, of course, a judge, not necessarily the DOJ. The prosecutor is removed, already served a 120-day term. That's the person who was ousted under this unusual series of events, Andrew. And so the Times says the question is whether the Trump administration even had the authority to make what they're calling a second interim appointment. As I mentioned, arcane, dry, boring, unless the Comey lawyers think it helps them strike a blow here.

24:42John Flannery:Can you explain this to us in plain English and could it matter? It could matter. So there's both the legal rule and there's the remedy. And this is something that's going on around the country where you have the president trying to avoid having to have the U.S. attorney be confirmed by the Senate, which is what is required, and instead trying to install people over and over again at these interim ways. And many, many courts have said you cannot do that. It's going up to the Court of Appeals to decide that. But that's the issue. Can you sort of avoid Congress instead of and just appoint whoever you want for as long as you want against the congressional scheme.