Fmr FBI Director James Comey Indicted on Two Counts

0:00A morning walk, some bird watching. It's another easy Sunday. United Health Group makes these ordinary days possible with partners like the University of Tennessee Health Sciences helping communities manage their health closer to home. 54 % of participants have lowered their blood pressure, meaning fewer heart attacks and more Sundays at the park. This might feel like an ordinary day. To United Health Group, it's the health care system working better for everyone. Learn more at unitedhealthgroup.com slash commitment. All right. Welcome to The Beat. I'm Ari Melber. And we are reporting as we end a week that has had some historic highs, the pushback and victory by free speech advocates for Jimmy Kimmel and last night's legal low by any nonpartisan standard, the escalation of Trump's admitted plot to politicize and pursue possibly illegal revenge prosecutions and selective prosecutions out of the DOJ.

1:27And so we have something that is not normal and is rare, even if you put aside everything you've experienced in the Trump era. The person charged with protecting Americans and enforcing the law across the country, someone appointed in administrations of both parties who ultimately, as everyone knows, testified and spoke truth to power when he clashed with Donald Trump during the first round of trying to politicize the DOJ and the FBI. James Comey, the former FBI director, indicted last night after a very convoluted process. We'll get into that because President Trump had literally admitted that he wanted to call the play and have this person indicted regardless of doubts and evidence problems within his own DOJ.

2:14Comey is now speaking out when this news first broke about this within this hour last night, about 24 hours ago. We had just gotten the indictment, just gotten that news. We now have a statement from James Comey, which denies any wrongdoing. That indictment you see here is short in substance, in literal length, about a page and a half. And in the bottom there, it is short in signatures because this highly unusual, many say prejudicial process, lacks the most recent U.S. attorney who's been there since Trump started this year because that person was ousted, lacks the career prosecutors, just a lone signature of someone with no prosecutorial experience installed by Donald Trump, apparently, to get an indictment that no one else in his DOJ would sign.

3:01Now, it alleges that Comey knowingly made a materially false statement in congressional testimony and thus was trying to influence, obstruct, or impede what is Congress's power of inquiry. Now, the indictment is so thin, and sometimes indictments are sparse, but not usually this sparse when you're dealing with such a significant high-level former official, doesn't really get into the statements. But there is reporting that the government wants to go into basically whether or not Comey was truthful in referring to people who might have spoken out about what was going on inside the FBI and his views, basically authorizing a type of statement or leak.

3:42The charges are rushed because the deadline was next week. The actual legal process of the arraignment for former Director Comey is October 9th. I've reported this week that we are past the red line, that if you use the analogy of the boiling frog, when it comes to the rule of law, the frog has been boiled and it's dead. And we're now past the red line at a point where we are seeing how people deal with that. In the matter of unconstitutional attacks on free speech, we saw how big, powerful, rich executives might fold and then backtrack. We saw that this week. In the matter of the rule of law, we've seen how law firms and other individuals who literally take an oath, they're not just taxpaying citizens, they're members of the bar, how they have dealt with these efforts by Donald Trump to abuse power, to use the federal government to deny people legal services or make it harder with what are probably, some courts say, likely unconstitutional efforts to kneecap law firms based on their First Amendment and other legal rights who they associate with or represent.

4:47Trump's brazen efforts to do this have come with confessions in public. And in our strange time, our rapidly shifting media ecosystem, some people say, well, how bad can it be if he's saying it in public? But again, he has admitted to many things in public that he just wants you to accept. Whether or not a judge or jury ultimately accepts this case is one test. But it's not the only one, because there is a wider effort to abuse government power, to not only go after people who have taken great risks or done public service or use their First Amendment rights to speak out against him. That is an issue that unites Jimmy Kimmel and James Comey this week in different ways, but government efforts to target that.

5:30Donald Trump doesn't deny that. They didn't deny that they were targeting Kimmel for what he said, and they don't deny they're targeting Comey for his, what they view as opposition to Trump, which is allowed in this country. You still are allowed to serve in the government and then criticize the government or be a citizen and criticize the government. So there are big concerns here about the DOJ's independence. Trump vowing more. Now that Trump has been indicted, who is the next person on your list in this refugee? It's not a list, but I think there'll be others. I mean, they're corrupt. There'll be others.

6:03Look, it was, that's my opinion. There'll be others, and that is his opinion, the opinion of a politician, has always been, and the law governs this, different than whether there are facts to bring a case, probable cause to open investigation, guilt beyond a reasonable doubt to convict someone, and prosecutors who take those standards seriously and don't just accept the calls even from important politicians. James Comey, who knows a lot about this system, he is in that rare position of going from actually overseeing these kinds of cases, developing the evidence, meeting with DOJ, running the FBI, to being on the other side of the FBI that develops these kind of cases and the DOJ that prosecutes them.

6:48And he says he's innocent, and he understands in the wider context why this is a time to also address other Americans about the fear that this president would want anyone to have just for being American, for exercising your rights. So here was Mr. Comey's response. We will not live on our knees, and you shouldn't either. I'm not afraid, and I hope you're not either. I hope instead you are engaged, you are paying attention. 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 and keep the faith. let's have a trial which of course no single politician controls even one trying to do all these power grabs a trial as we all know from civics textbooks or watching law and order a trial involves other people 12 of your peers and mr comey sounds pretty confident that if they don't get this case dismissed before then and they have some good arguments before then what are called pre-trial motions with regard to government misconduct and other things but if they don't get it dismissed before then, he sounds pretty confident that 12 people hearing all the evidence will acquit him and perhaps few more negatively the government's case and the sordid path we got here on.

8:11Now, what is in this two-pager I mentioned? It's a thin set of charges. The grand jury reportedly rejected a requested third charge against Comey. There's a form that shows they declined this additional false statements charge, which is significant because, as you probably know from the ham sandwich saying, grand juries tend to accept reasonable or well-presented government arguments and move it along. In fact, grand juries are generally kind of under the view that this is not the end of the case, it's the beginning, and if somebody's innocent, they'll get their chance later, but they hear out the prosecutors.

8:46They're a tool of the prosecutors, and yet on one out of three, they said no already. We also have reporting that only 14 of the 23 grand jurors signed off on these counts, meaning there was already unusually high dissent on the two counts that passed muster. Legal experts say this is a pretty unserious beginning to a case against a very serious respected government veteran, that it could end in spectacular failure, and in a sign of how we should cover this and whether people should just give in to Trump's effort to misuse the process to make everyone sound like a defendant and be on defense, a warning that this is now what prosecutors do in dictatorships.

9:28As for the path, I mentioned the prosecutor who brought the case is formerly Donald Trump's personal defense lawyer, and she is lonely as a legal matter, the sole signatory on that indictment. Usually you have several, which shows the legal process of people, again, members of the bar, signing their name to something that they think is legally defensible. She doesn't have experience presenting to a grand jury, usually of a matter of this import against an FBI veteran. You'd want a veteran to do it, but she marched in there alone, apparently, because no one else would do it, and senior prosecutors had already written what's called a declination memo, ruling that there wasn't evidence to proceed on this case.

10:10Now, everything I've just told you is about why it's already this thin. But there's more. And the more is bad news for the Trump DOJ, which, make no mistake, is in crisis tonight. This is something that they did not want to do. This is something that before Donald Trump publicly hectored them this week and name-checked Pam Bondi, the evidence is that she had not cleared the way to do this. and we will find out. We don't have all the evidence yet, but this is now a trial. So if it's not tossed, there's going to be a lot of requests from the Comey defense side to see all of the material that the DOJ has that might have led the other people inside the DOJ to say there's no case here.

10:50That is in the law, if you want to get into it, what's called Brady material from a case that says defendants have the right to see it or exculpatory material. And judges enforce that pretty strictly. So the lawyers inside the DOJ, I don't know if the new lawyer knows it because she's not as experienced, although she did some defense law. So she ought to have some idea that everything that they have that's evidence or that's written material relating to the evidence that shows there was no case, which is why this wasn't brought for many years under career prosecutors, why it wasn't brought as of last week, they got to hand that over.

11:21So we might see it. We might see moments that are described in emails or memoranda, descriptions of pressure being brought to bear, whether that's from the president or somewhere else. We might learn why up to this week Pam Bondi had not signed off on doing this or whether she was informed, briefed or agreed with the doubts about this very case. Remember, prosecutors have to prove beyond a reasonable doubt Comey intended to lie to the Senate committee, not that there was a misstatement, but that this was his unlawful corrupt intent that day. And this brings me to the more. If you say, okay, well, people must have misstatements before Congress, sure.

12:02But that criminal level is a high bar for a reason. It's an exclusive, rare group of people who have ever actually gotten in trouble criminally for lying to Congress. And usually, like Michael Cohen, when there were other charges involved. Those convictions average out if you do a rough count, and it's give or take, but it's not a monthly or yearly thing. It's about one a decade, according to an obscure study that looked at this obscure charge. And then remember the other side of the ledger. Donald Trump has weaponized and incentivized going after these kind of opponents, in his view, he sees them as opponents, for many years.

12:42He was in power for a whole first term. We already know that Comey and his deputy were audited, which was unusual from a financial side. We know that they were investigated. We know that they testified. Remember, Comey went before Congress in a way that some other officials have resisted or delayed. He went and spoke under oath. So they were cooperating. And then they're being investigated for that cooperation. And this has been reviewed many times. I'll get into that tonight as well. And that's just Comey. There is a wider list of individuals that Trump has identified as critics or foes, and some are indicted upper left.

13:16Some were indicted and the case already fell apart, the mayor. Upper middle, Comey, indicted yesterday in the case already on the ropes in a substantive and legal sense. longtime conservative lower right John Bolton searched, which looks like they're developing a case against that former Trump appointee. And so this chart tells you a story, and it's the story we're covering at the end of a big week for America and the Constitution. And the story is it's not about red and blue or left and right. It is about whether you agree with the would-be autocrat politician or not. Because if you break with him, even after serving him as Mr.

13:53Bolton did, well, your home could get searched, your family harassed, your workplace attacked, and in some cases, when he's angry enough to keep hectoring even his own aides who said there was no case there, your life turned upside down as they indict you and threaten you and the people around you with jail. This is America under Donald Trump. So what do we do with it? We have someone who actually personally knows many of the individuals here and has worked at the highest levels of the FBI, Andrew Weissman. I've got a lot of questions for you. Andrew and I are back together in 90 seconds.

14:32A morning walk, some bird watching. It's another easy Sunday. United Health Group makes these ordinary days possible with partners like the University of Tennessee Health Sciences, helping communities manage their health closer to home. 54 % of participants have lowered their blood pressure, meaning fewer heart attacks and more Sundays at the park. This might feel like an ordinary day. To UnitedHealth Group, it's the healthcare system working better for everyone. Learn more at unitedhealthgroup.com slash commitment.

15:31If you're a parent and want to help set up your child for success, then iExcel is a right for your family. As an effective and affordable online learning program, iExcel covers math, language arts, science, and social studies, using interactive practice problems for kids from pre-K to 12th grade. Listeners can get an exclusive 20 % off IXL membership when they sign up today at IXL.com slash 20. Visit IXL.com slash 20 to get the most effective learning program out there at the best price. We're joined now by Andrew Weissman, former FBI general counsel, a top prosecutor on the Mueller probe, and an individual who both has what we call subject expertise on all these issues and knows a lot of the individuals.

16:16Thanks for joining me tonight. You're welcome. Andrew, if we thought this was completely on the level, I would start by asking you to assess the indictment and the case itself, and I will. But I actually don't think, based on our reporting and my understanding, that that's the place to start. I wanted to begin by asking you to assess the path to this two-page indictment and whether substantively, regardless of who's involved, whether you know them or like or dislike them, I would say this if it was anyone prosecuted in this manner. Does the path to this look like a standard and acceptable FBI DOJ process you're familiar with or has it departed in ways that are improper or potentially unlawful?

17:00I think that is absolutely the perfect way to start this analysis, because that's the thing that we know almost for sure. Since we don't know everything about the government's case here, I think that the process is so important because you essentially have the president using the Department of Justice as a loaded gun that he can point at people. I think it's absolutely correct to relate it to the Eric Adams situation, to the Jimmy Kimmel situation, to using the levers of power in this unilateral fashion. And here, the things that are so unusual is you do not usually have a series of career people saying there is insufficient proof.

17:48And not only the career people saying that, but the Trump political appointee who was the sitting U.S. attorney agreeing with that. And what happens, this is somebody who is a Trump loyalist who is put there, who is removed. And because his view was that I'm not going to do something that he viewed as inconsistent with the facts and law. So you have career people and you have the Trump appointee saying no. You then have somebody who is on the case with no prosecutorial experience for essentially a New York minute, who obviously did not have the opportunity to review the facts, interview witnesses, hear from the defense, all of the normal things that you do as a prosecutor to assure the gravity of the situation before you bring a charge.

18:42And this just reads like I'm there to do one thing that the president directed in a tweet be done. And I obviously did not have the time to do that. And you have all sorts of signs, including an incredibly rare vote in the grand jury where you're hearing that it's only 14 of the 23. They needed to get 12. So that just by the skin of their teeth, were they able to get 14? And that bodes, just to be clear what that means to me, at trial, the government needs to prove their case unanimously. All 12 jurors have to agree to get a conviction. Here, they were only able to get 14 out of 23 on the very low standard of probable cause, which is a very low standard compared to proof beyond a reasonable doubt.

19:35Let me join that point because, as you said, there's much we don't know. That's something we do know. and most Americans aren't sitting around memorizing the different vote standards in the criminal justice process. But to echo what you're saying, I'll let you continue because I think it's so important as people make sense of it in this week we've had. The early standard is deliberately low. The government gets to move forward if they have some evidence and they don't need, as you mentioned, a unanimous vote. So I would liken that to being tall enough to get on a ride at Disneyland. I don't know if everyone wants to spend their money at Disney right now or not.

20:12That's a personal decision, but that's like here. And then actually going to trial is like dunking in the NBA. You need to have evidence beyond a reasonable doubt where 12 people who come together as strangers all agree that with no other reasonable doubt or alternative reasonable explanation on the evidence and facts, this individual, whoever it may be, got up that day, went to the FBI. to Congress and plan to lie and obstruct a proceeding. So again, picking up where you were, Andrew, with that mismatch alone, what does that mean about the strength of this case and how this same topic has already been investigated in the Trump first term by the internal DOJ watchdog and a special prosecutor, Durham, who looked at a lot of these related issues and prior was not found to be a case.

21:08Yeah, so, I mean, just to sort of, you know, be a dog with a bone, the difference is that for the trial jury, it has to be unanimous, not 12 out of 23. It has to be all of the jurors. And it's not probable cause. It's proof beyond a reasonable doubt. That's the highest standard in law. So both of those things mean that if they could only get 14 out of 23 on this very low standard, I mean, they are going to need to either find a new proof or this is a case that's doomed to failure. And having looked at what's now the reporting about what is actually the substance of the claim here, it seems unbelievably weak.

21:54There are all sorts of defenses that come to mind. But one is, Jim Comey is accused of having told somebody who worked at the FBI that Jim Comey was authorizing them to speak anonymously to the press. That person is reported to be Dan Richman, a professor at Columbia Law School, a friend of James Comey. And here's the problem. In the many, many investigations that were done of this and around this area, Dan Richman is on record saying that James Comey never told him to speak to the media. So if James Comey is going to say, I didn't do it, and the only other person who's part of that conversation said he didn't do it, you really have to wonder, where is the proof?

22:48And it starts looking like there's a reason that the career prosecutors and the former of the Eastern District of Virginia were saying that you should not bring this case because who are they going to rely on? Well, and exactly. They may not want to fall flat on their face. that some people may give up their oath or do things they had previously found to be wrong for Donald Trump. Others think even if they do that, when the case, if the case were to blow up and fail, then they'd be sitting there with a worse problem personally for their career and an angry president anyway. Some have made that calculation, it would seem.

23:25We'll learn more. Others not, because he found someone finally to do it. With your experience, Andrew, have you ever seen a matter like this that had been investigated and basically not been deemed a case, whether there's a full formal declination memo or just the prosecutor say no. And then without new evidence, have you ever seen that reversed? Not in your life. And I worked for Democratic and Republican administrations. I want to make sure people understand this is not a partisan issue. The Republican administrations I've worked for would not in a million years do something like this. It's true for Democratic administrations as well.

24:04Reasonable minds can differ when there's levels of proof. That, by all accounts, is not the situation we're in. And all of the signs are there. I mean, it's just, I mean, look, this is not rocket science. You don't have to remove your own appointed U.S. attorney to put in, you know, essentially a henchman to do this in one day with no additional investigation, no individual review that we know of, and then the cases brought. I mean, it really is the stuff of autocratic regimes that we're seeing happen and unfold right before our eyes. Yeah, really striking. Again, with your experience, you walking us through it and us making sure we're trying to cover the whole picture of the facts, not just perhaps the...

24:57bad sounding, potentially distracting Trump indictment piece of it and not why, according to people who've worked in DOJ, according to Trump's own appointees, much of this smells terrible. Andrew Weissman, thank you. We'll be coming back to you, I'm sure. Tonight in the show, Andrew and I discussed how the constitutional issues around Jimmy Kimmel echo some of what's happening at the DOJ. We have another round where Kimmel is winning tonight, we'll explain. And the prosecutor who ran the DOJ's criminal division is here on another aspect of the Comey case. And the echoes of Watergate. Nick Ackerman returns to the beat next.

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28:06In the pantheon of American history, our sense of ourselves and our ability to deal with, reckon with our own government failures, Watergate looms large. It is the scandal that actually brought down a president. It involved the system ultimately eventually working and there being accountability. And many other scandals, as you know, are appended with the word gate, just as a kind of an echo of Watergate meaning something, or Watergate level, or as some books have put it, worse than Watergate. And tonight, people with that experience and many legal experts say what Donald Trump is doing is quite measurably worse than Watergate.

28:47Basically running way past what was the red line that actually did factually provide the basis to force Richard Nixon from office. and you can say it was a different time, perhaps a less polarized time, and how people learned about facts was different, but there was still facts that led him to resign. In Trump's case, we are past that red line in terms of the activities and confessions from the president, but those confessions are offered often in public in real time. Now, we're not going to do the entire Watergate history here, but you might recall that Nixon was forced to resign after evidence came out.

29:35There was smoking gun tapes. He had long fought resisting their release. The Supreme Court of that era really meant no president was above the law. He was the sitting president and they forced the release of that material. As you may recall last year, this more MAGA Supreme Court said the opposite. that even a former president, Donald Trump, had newly discovered immunity. But back then, remember, in the recording, which infamously was a tape system that Nixon himself had set up, not realizing it could ever be ripped from his control, the thing that happened was he admitted to abusing power, secretly, but admitting it.