ALEXANDRIA, VA—This morning’s hearing on James Comey’s motion to dismiss for vindictive and selective prosecution was largely overshadowed by the revelation that the indictment may not be valid because it was botched by interim U.S. Attorney Lindsey Halligan. You can read my initial report from court here.
It would be an epic way for the weaponized prosecution of Comey to end: the Trump loyalist with no prosecutorial experience so badly mishandling the basic nuts and bolts of grand jury practice that no indictment ever attached to Comey.
But a botched indictment only indirectly gets at the heart of the bad faith and ill motive that is driving the Comey prosecution, so let’s run through some of the highlights of the nearly hour-long argument that preceded U.S. District Judge Michael Nachmanoff pressing prosecutors for answers on their mishandling of the grand jury. Instead of recounting the arguments from both sides — former deputy Solicitor General Michael Dreeben for Comey and Nathaniel Lemons for the government — I want to zoom in on what most interested the judge and where his questions were most focused.
Is General Animus Toward Comey From Trump Enough?
The judge wanted to know whether the vindictive motive for the prosecution had to be in retaliation for exercising a constitutional right — in Comey’s case, his First Amendment right to freely criticize Trump — or if a claim of vindictive prosecution could be sustained if the retaliation was based merely on general animus toward the defendant. Comey’s position was that both were viable, and, ultimately, under questioning from Nachmanoff, Lemons agreed. That opens the door for Nachmanoff to consider all manner of Trump invective aimed at Comey. Dreeben seized on that concession, arguing that the basic legal framework was not in dispute.
Was There a DOJ Declination Memo?
Nachmanoff wanted to know from both sides if the Justice Department had issued a declination memo — a written explanation for why Comey should not be charged — like it had in the Letitia James case. Comey doesn’t know, and in the most contentious part of the hearing on the motion to dismiss, Lemons refused to say, claiming he didn’t have permission from DOJ higher-ups.
Nachmanoff, incredulous that a counsel of record in the case couldn’t answer whether there had been a declination memo, peppered Lemons with questions: You didn’t check to see if there was a declination memo? Did you seek out a declination memo? Did you seek to find out whether a prosecution memo was prepared? Did someone instruct you not to answer?
Lemons revealed that he didn’t have permission from deputy Attorney General Todd Blanche’s office to answer the question on the grounds that it was privileged work-product. The most he would say was that there had been lots of internal discussions and a “draft memo.”
For his part, Dreeben seemed on guard about the potential lack of a declination memo, I suspect because it’s better for his case if line prosecutors had recently recommended in writing against pursuing charges, like they did in the James case, and Halligan ignored them. But the judge seemed to be getting at a different point, which he expanded on later in the hearing.
If Halligan was appointed interim U.S. attorney on Sept. 22 and brought the Comey case to the grand jury on Sept. 25, then “what independent evaluation could she have done in that time frame?” the judge asked. The existence, or lack thereof, of declination and prosecution memos would help determine whether Halligan had really exercised independent judgment. Lemons demurred that that was a question to be ascertained if the judge ordered a discovery phase on the vindictive prosecution claim.
What About These Trump Remarks That You Didn’t Cite?
Nachmanhoff pushed both sides to address comments from Trump that he made to reporters the day after he posted on social media his notorious message to Attorney General Pam Bondi demanding she pursue the prosecution of Comey, James, and Sen. Adam Schiff. Noting that James had cited these remarks in her brief and Comey had not, Nachmanoff read most of them out loud:
“No, I just want people to act,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I was impeached twice. I was indicted five times. It turned out to be a fake deal. And we have to act fast! One way or the other. One way or the other. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they are guilty, or if they should be charged, they should be charged. And we have to do it now.”
Dreeben seemed concerned that the judge was treating those remarks like a walk back of the social media post, but later when Nachmanoff pressed Lemons about the same remarks it became clear that the judge saw them as especially damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution claim was based entirely on anonymous sources, news reports, and conjecture, the judge brought him up short.
“You’re not saying these are not the words of the president?” Nachmanoff asked, citing the quote above. Lemons beat a hasty retreat.
A few moments later, the judge again brought Trump’s remarks up about “acting fast” and “guilty or not guilty,” asking Lemons: “How is that consistent with your practice when deciding whether to bring a case before the grand jury?”
Then, still focused on the Trump remarks that Comey hadn’t cited, Nachmanoff interrupted Lemons to ask his most pointed question about the vindictive prosecution claim: How is that consistent with the Justice Manual that you only bring cases if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction upheld on appeal?
Lemon retreated to saying that even if Trump had improper motive, Comey had to prove that Halligan had the improper motive in her own mind. At which point, the judge made Comey’s case for him, telling Lemons that Comey’s argument is that Trump gave the order to prosecute in the social media post and reiterated it in follow up remarks.
At that moment in the hearing, Nachmanoff sounded convinced that the bar had been cleared for a successful vindictive prosecution claim.