A Disastrous Day in Court for Trump

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Speaker 2 From the New York Times, I'm Michael Barbaro. This is the daily.

Speaker 2 On Monday afternoon, a federal judge threw out the criminal charges that the Trump administration brought against two of the president's biggest enemies.

Speaker 2 Today, the unexpected technicality that doomed the cases, and what the ruling will mean for Trump's ambitious second-term campaign of retribution.

Speaker 2 It's Tuesday, November 25th.

Speaker 2 Devlin, thank you for, as you always do, dropping everything and coming into the studio on a breaking news night.

Speaker 3 Thanks for having me. It's old hat for you at this point.

Speaker 3 Always tired, never bored. That's my life.

Speaker 2 Amen.

Speaker 2 So I think it's fair to say that nothing embodied the progress that President Trump has been making in his campaign of retribution against his enemies so much as the indictments of James Comey, the former FBI director, and Letitia James, the current Attorney General of New York.

Speaker 3 And

Speaker 2 just a couple hours ago, a judge tossed out both of them in one fell swoop.

Speaker 3 Right, because this retribution campaign by the president has delivered some incredible scalps for the president and what he wants.

Speaker 3 But it did so in a very legally risky way, a very, I think a lot of people would say, factually risky way.

Speaker 3 And as important as these cases are, and as alarming as it has been to some people to see the president publicly order prosecution of people he doesn't like.

Speaker 3 I think the unanswered question until Monday was, would the court system go along with this? Would judges go along with this?

Speaker 3 And the first cut, and it's not going to be the last cut, but the first answer to that question is an emphatic no.

Speaker 2 And this may be the first cut, but it's a deep cut. to the president when it comes to this idea of retribution.

Speaker 3 It's a deep cut to the president and the administration in a couple of ways. First,

Speaker 3 in the sense that he has lost, for the time being at least, these two centerpiece cases of his drive for retribution.

Speaker 3 And it's also a deep cut to the degree that he is being told that the way he's running the Justice Department is not appropriate under the law.

Speaker 3 It's not what the law says you can do with the Justice Department.

Speaker 3 And another way to think about the significance of this moment is:

Speaker 3 Trump has publicly declared time and again that people he doesn't like are criminals and that they should be prosecuted.

Speaker 3 A lot of times, the facts and the law of what he's talking about don't really stand up to scrutiny.

Speaker 3 And one of the, I think, the great tests of this moment for the legal system and for the administration is to what degree does Trump's version of reality impose its will on the court system?

Speaker 3 The courts are about establishing facts, and the courts are about following the law.

Speaker 2 Right.

Speaker 2 The court's reality here is that these cases were deeply flawed. So to that point, let's talk about how

Speaker 2 these two cases got to the point where they could be at the very front end of the system so easily tossed out and tossed out so quickly. We've got the Comey case and the James case.

Speaker 2 One involves leaking, the other involves mortgages. Just briefly remind us about the legal basis for both these cases.

Speaker 3 Right. So let's take a look at who each of these people are and what they're accused of.
So when it comes to James Comey, he was obviously the FBI director when Trump became president the first time.

Speaker 3 And he oversaw the FBI as it investigated Russian election interference, as it investigated the Trump campaign.

Speaker 2 Which made him enemy number one for Trump forever. Right, exactly.

Speaker 3 I think it's safe to say that there's no one Trump despises more than James Comey.

Speaker 3 And

Speaker 3 if you fast forward now to 2025,

Speaker 3 there has been a building pressure on the Justice Department to investigate and prosecute Comey.

Speaker 3 And what you saw over the summer was career prosecutors taking a look at the evidence that had been gathered on a range of issues, but primarily a question of whether he may have lied in congressional testimony from 2020.

Speaker 3 Career prosecutors look at that and say, there's no case here.

Speaker 3 And then, in very short order, the person running that office is forced out, who is a Trump pick themselves, and serving in that role on a temporary basis. And

Speaker 3 in his place, the administration puts Lindsey Halligan. Lindsay Halligan is

Speaker 3 a longtime Trump aide who had no prosecutorial experience before she was given this assignment to become the U.S. Attorney in the Eastern District of Virginia.

Speaker 2 Right. Trump cycles through as many prosecutors basically as it takes until he can get someone, a loyal aide, Halligan, it turns out, who would bring a charge against Comey.

Speaker 3 And not just bring a case against James Comey, but also bring a case against Letitia James, the New York York Attorney General.

Speaker 3 The Trump history on Letitia James is that she pursued him in court, she sued him in New York and won a verdict for hundreds of millions of dollars over business fraud related to Trump's businesses.

Speaker 3 And he has been mad about it for a very long time. Again, you get to this summer and Justice Department officials are under pressure to charge Letitia James with some sort of mortgage fraud.

Speaker 3 And eventually, once Lindsay Halligan is in place, Halligan brings an indictment.

Speaker 2 Trevor Burrus: So Halligan ends up being two for two.

Speaker 2 And it's not so much that she's evaluating what look like super strong legal cases against Comey or James.

Speaker 2 It's that she very much wants to fulfill the president's desire for an indictment. That seems to be more or less the conventional wisdom from the minute these cases are brought.

Speaker 3 Well, that's certainly what it looks like based on what we know.

Speaker 3 And what we know is that career prosecutors said, not only do we think this is not a good case, we don't even think this is a strong enough case to merit presenting it to a grand jury.

Speaker 2 However, a grand jury in both cases indicts.

Speaker 3 Correct. And that becomes one of the bases for this challenge because

Speaker 3 one of the things that's very unusual about both these cases is that a new prosecutor parachutes in Lindsay Halligan and within a matter of days delivers indictments essentially on her own that her own office didn't think had merit.

Speaker 3 So both Letitia James and James Comey fight back on a number of legal arguments, but they share one argument in particular, which is that Lindsay Halligan's appointment was never lawful, is just not right.

Speaker 3 She shouldn't be the U.S. Attorney, can't be the U.S.
Attorney. Why?

Speaker 3 Because normally what's supposed to happen is that a U.S. attorney is supposed to be nominated by a president, confirmed by a Senate.

Speaker 3 And if, for whatever reason, that can't happen, you know, there's a process to pick a temporary replacement for a limited period of time.

Speaker 3 And as you might remember, I already said there was someone already serving in that role on a temporary basis. So Lindsey Halligan becomes sort of a double temporary U.S.
attorney.

Speaker 3 The defense argument here is actually a pretty simple one, which is like you can't just keep adding temporaries on top of temporaries at the the same time that lawyers for Comey and lawyers for James are fighting about the Halligan appointment, which is kind of a technical issue.

Speaker 3 They're also waging a much bigger fight in some ways over the very premise of what just happened, meaning they're arguing that this is vindictive prosecution.

Speaker 3 They're arguing that but for Trump's dislike of these two human beings for political reasons, there would never have been a criminal case against either of them.

Speaker 3 And that's obviously an important issue in the whole larger picture of what's happening in the Justice Department, what's happening at the Trump administration. Right.

Speaker 2 They're making an argument that really gets to the heart of both cases. Basically, does it have any merit? Is it simply an act of revenge? And if it's just an act of revenge, isn't that illegal?

Speaker 3 Right.

Speaker 3 And that really came to a head last week in court when Comey's lawyers made their case to the judge that this was just a vindictive prosecution, that this case existed because President Trump wanted him punished.

Speaker 2 Well, just describe this hearing.

Speaker 3 So, this was a hearing that did not go well for Lindsey Halligan. And the judge had a lot of pointed questions about the grand jury, how the grand jury actually ended up voting on this.

Speaker 3 And at one point, the judge specifically called Lindsey Halligan up to answer his questions directly, as opposed to having a different, more experienced federal prosecutor answer the questions.

Speaker 3 And in that line of questioning, Halligan and her associate conceded that the written final version of the indictment wasn't exactly the same paperwork that the grand jury had voted on.

Speaker 2 And just explain why that would be a big deal.

Speaker 2 Well,

Speaker 3 it's a technical thing, but obviously a grand jury is supposed to vote on the indictment that gets filed to the court.

Speaker 3 But Lindsay Halligan's answers seemed to raise new doubts as to whether the grand jury had actually approved the final version of the case against Jim Comey, so much so that Comey's own lawyers immediately popped up and said, Your Honor, what they just said is another reason to dismiss this case.

Speaker 2 Gotcha.

Speaker 3 Halligan and the Justice Department's argument is that this is a technical procedural thing. It doesn't affect any of the substance.
That's their argument to those concerns.

Speaker 2 Right.

Speaker 2 But to those of us watching from home, it felt like if anything was going to unwind this case, it was probably going to be a ruling of vindictive prosecution based off of Lindsey Halligan's very complicated testimony in that hearing.

Speaker 3 Right. I think that hearing really raised expectations that there was going to be potentially a seismic ruling about the whole question, the whole issue of vindictive prosecution.

Speaker 3 But in fact, on Monday, the first judge's opinion dismissing these cases came on the technical issue of Lindsey Halligan's appointment.

Speaker 2 We'll be right back.

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Speaker 2 So, Devlin, walk us through this ruling that ultimately determines that Lindsey Halligan is not legally able to have brought these indictments against either James Comey or Letitia James.

Speaker 3 Right. The judge basically agrees with the arguments Comey and others have made that you can't have essentially a double temporary U.S.
attorney.

Speaker 3 And the judge says that it simply can't be right that when you don't follow the normal process for putting a U.S.

Speaker 3 attorney into that job, that would sort of negate the whole purpose of having a rule about this to begin with.

Speaker 3 So what the judge said was this.

Speaker 3 It would mean the government could send any private citizen off the street into the grand jury room to secure an indictment so long as the attorney general gives her approval after the fact.

Speaker 3 That cannot be the law, the judge wrote. And what she means by that is if you were to allow this system to continue to the obvious conclusion, you really wouldn't have any more Senate-confirmed U.S.

Speaker 3 attorneys. It would just be the president picks whoever they want, whenever they want, and they just keep doing that.

Speaker 2 Basically, this judge is saying that the administration has so diluted the normal process of picking a U.S.

Speaker 2 attorney who is, of course, the local embodiment of the Justice Department that the process is completely disconnected from its original intent.

Speaker 2 And like the judge said, basically, the president could put any old person in that job now.

Speaker 3 Right.

Speaker 3 And as part of the legal basis for making this decision, she cites explicitly a decision handed up last year by a different judge in a different courtroom named Aileen Cannon, who dismissed the Trump charges for mishandling classified information because that judge found that the prosecutor in that case, a guy named Jack Smith, was improperly appointed.

Speaker 3 And it's an amazing bit of courtroom karma that that legal argument has now been used to dismiss an indictment that the president demanded.

Speaker 2 Right. It's the ultimate legal boomerang

Speaker 2 because the argument used here to dismiss a case the president wants against his enemies was used by a judge to dismiss a case against the president.

Speaker 2 It seems like the judge is saying to the Trump administration: you should understand this argument full well.

Speaker 2 You won one of your biggest legal victories based on it. Exactly.

Speaker 3 And I'll say, having attended the hearing that led to this decision, she brought up that canon ruling on Jack Smith in the hearing itself.

Speaker 3 She flagged it as, well, don't I have to follow the example set by Judge Cannon in U.S. v.
Trump?

Speaker 3 And clearly, the Trump administration did not have a good answer to that question.

Speaker 2 Aaron Ross Powell,

Speaker 2 Devin, now that a judge has dismissed the indictments of Comey and James based on this more technical argument, what happens to the more kind of spiritual argument of vindictive prosecution?

Speaker 2 Does that ruling ever happen? Or once the case is dismissed, does that ruling just get tossed aside?

Speaker 3 Aaron Ross Powell, I think that issue is just sort of in a coma unless and until this case is revived without a higher court deciding, no, this indictment should exist again.

Speaker 3 I don't think you can have arguments or have a ruling about the vindictive prosecution question.

Speaker 2 Aaron Powell, for now, that argument's in limbo, but I wonder if you can help us understand whether any of this case will ever come out of your so-called coma.

Speaker 2 Could the administration try to bring these indictments back again?

Speaker 3 Aaron Ross Powell,

Speaker 3 they certainly could because the judge dismissed both of them with what's called without prejudice. There are two ways to dismiss a case.

Speaker 3 One is with prejudice, which means you cannot refile this no matter what.

Speaker 3 And the other is without prejudice,

Speaker 3 which means you can refile. And these cases were dismissed without prejudice.
Got it. So there is still an avenue here, at least in theory, for prosecutors to try again.

Speaker 3 I think as far as reviving these cases, I have no doubt the desire is there on Trump's part. I think the question is:

Speaker 3 if you're the Justice Department, if you're Trump's Justice Department, how do you balance the desire to appeal, the desire to fight this decision with the more practical question of, okay, so if Lindsey Halligan isn't the U.S.

Speaker 3 Attorney, who is?

Speaker 3 And who exists within the government that might even be willing to try to take a second shot at the grand jury with these cases.

Speaker 3 This becomes potentially another search for the prosecutor who will, you know, pursue this case yet again.

Speaker 2 And Devlin, in all likelihood, it's probably going to be another temporary U.S. attorney, because as you just said, the career prosecutors don't want to bring these cases.

Speaker 2 So is it possible that the basis for tossing out these cases, as technical as it might seem, becomes a broader rejection of the entire Trump administration strategy of picking pretty inexperienced allies of the president to bring the cases against his enemies that he wants that the rest of the Justice Department system is really resistant to bringing.

Speaker 3 It's entirely possible.

Speaker 3 And so there are a lot of question marks here as to what will the administration's next steps be because they have pushed the department into a bunch of situations and scenarios that really haven't been contemplated before.

Speaker 2 Well, I wonder where this ends up leaving the president's vision for retribution. Because it was always our understanding that in the second term, he learned from the mistakes of the first.

Speaker 2 And in the first term, he really struggled to carry out retribution.

Speaker 2 In the second term, he was going to appoint people who were willing to do what he wanted against his enemies and who were supposed to be qualified to do it.

Speaker 2 And this ruling suggests that's not really the case.

Speaker 3 Aaron Ross Powell, so this is obviously a very important set of rulings by this judge, and I think they represent a major setback for the president's retribution campaign against his enemies.

Speaker 3 But I also think it's a trap to think that in court, that the thing that just happened is the most important thing, is the decisive thing.

Speaker 3 And so I don't think this is going to be the final word or the final indicator of anything to do with the president's retribution campaign.

Speaker 3 For instance, if you look in Florida, the Justice Department is putting together an investigative prosecutive effort that's trying to pull together all these different parts of what Trump supporters argue is a great conspiracy against him, stretching back to his first campaign for president, and trying to build that effort specifically under the auspices of Judge Aileen Cannon, Cannon, the judge who threw out the charges against Donald Trump.

Speaker 2 Right. The thinking here seems to be if you can't find a prosecutor who will do this work of retribution, then go find a judge who will.

Speaker 2 Right.

Speaker 3 Which is why I say I think it's a mistake to assume that this ruling will stop efforts at retribution, efforts at payback, because I think the Trump administration has made clear they're going to keep looking for cases and places to pursue retribution.

Speaker 2 Well, David, thank you very much.

Speaker 3 Thank you.

Speaker 2 I'm grateful that the court ended the case against me, which was a prosecution based on malevolence and incompetence,

Speaker 2 and a reflection of what the Department of Justice has become under Donald Trump, which is heartbreaking. On Monday night,

Speaker 2 James Comey released a video about the dismissal of his indictment. In it, Comey said that he expects President Trump to come after him again,

Speaker 2 but that he believes an independent federal judiciary would protect him and anyone else targeted for retribution by the president.

Speaker 2 This case mattered to me personally, obviously, but it matters most because a message has to be sent that the President of the United States cannot use the Department of Justice to target his political enemies.

Speaker 2 I don't care what your politics are. You you have to see that as fundamentally un-American and a threat to the rule of law that keeps all of us free.

Speaker 2 We'll be right back.

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Speaker 2 Here's what else you need to know today.

Speaker 2 In its latest act of retribution, the Trump administration opened an investigation of Democratic Senator Mark Kelly of Arizona over allegations that his participation in a video statement to members of the U.S.

Speaker 2 military was an act of official misconduct.

Speaker 2 Kelly, a retired Navy captain and astronaut, was one of six Democratic lawmakers who, in the video, told American troops that they have the right to ignore illegal orders issued by Trump, a message that has infuriated the president.

Speaker 2 As a result, the Defense Department is now investigating whether Kelly violated the military's code of justice, which applies to retired service members.

Speaker 2 In theory, Kelly could be recalled to active duty or disciplined, a possibility that legal experts said was both remote and legally dubious.

Speaker 2 Today's episode was produced by Rochelle Bonja, Diana Wynne, Mary Wilson, and Rob Zipko.

Speaker 2 It was edited by Lexi Diao and Rachel Quester, contains music by Alicia BaeTube and Marion Lozano, and was engineered by Chris Wood.

Speaker 2 That's it for the daily. I'm Michael Bavaro.
See you tomorrow.

Speaker 1 We all have moments when we could have done better. Like cutting your own hair.
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