Trump's Witchhunt is About to Meet This Reckoning | The Daily Beast Podcast

What Donald Trump will get is dragging me through all the stress, including financial stress, of having to defend against this. I think Comey's team has a pretty good shot at possibly getting rid of this, which we can talk about even before it gets to trial. So in terms of the cost, you're easily looking in the hundreds of thousands. for a major firm. Welcome to the Daily Beast podcast. I'm Hugh Daugherty, executive editor of the Daily Beast. I'm sitting in for Joanna Coles. To all her fans, you can get your fix of her brilliance.

on the latest episode of Inside Trump's Head with Michael Wolff. It is an absolute must listen. If you've not yet heard it, please subscribe. Go back and binge every episode to find out the real truth. about this turbulent present from the man who really does know him best. Thank you to everyone who commented on the last episode of the Daily. Beast podcast, where I was lucky to speak to Lieutenant General Mark Hertling. about that bonkers pair of speeches to the Generals by Pete Hegseth.

and Donald Trump. There was thousands of great comments. I just want to highlight one that's very personal from Kate Bergstrom, who said my mom served under Lieutenant General Hertling in Heidelberg, Germany. She always said it was an honor to work with them. A good dude, an excellent leader. Kate. Everyone who commented it was an honor to speak to him. We hope to have him back. And Kate, thank you for your mother's service. Please keep your comments coming in, even if it's to say you're struggling with my accent. I know many of you have said some very kind things. Thank you to our members. Celtic, Caitlyn and Queen, the Genie.

But I know Scottish isn't everyone's first language, so thank you for bearing with me. All right. Today we are joined by a brilliant guest whose first language, unlike mine, is. in fact the law. Sean, who is a lawyer. He's a former federal prosecutor. Among other things, he defends free speech on college campuses, which I imagine. makes you a rather busy Sean. But the reason I want to speak to you today is about a must read column. you wrote on The Daily Beast, headlined. All the Fatal Flaws in Trump's Case against James Comey.

Just to remind everyone, because let's be honest, who can keep up with all of this? James Comey was the FBI director who was fired by Donald Trump in May 2017. Since then, he's been a thorn in Trump's side, and Trump has been demanding. he can be prosecuted for pretty much anything that he can think of. Late last month, Trump finally got his way in the Eastern District of Virginia. A grand jury indicted Kumi on two counts one charge. of making false statements to Congress and one charge of obstruction.

So, Sean, welcome. Thank you for joining us. Thank you for your amazing expertise. I've got one question to start with here. Is Donald Trump going to get what he wanted? Is James Comey really going to go to prison? That's pretty. unlikely, even if he got convicted. The jail time would not be that significant. There's a whole matrix involved. He's a first time offender. The type of case that it is. However, what Donald Trump will get is dragging Comey through all the stress,

including financial stress of having to defend against this. I think Comey's team has a pretty good shot at possibly getting rid of this, which we can talk about even before it gets to trial. But I think the triumph for Trump here on the legal side is succeeding. And getting an indictment lays a lot of hurt on the target. Okay. So let's just unpack that a bit. James Comey is going to be defended by Patrick Fitzgerald. And he is well, he was one of the most.

feared prosecutors that the federal system ever had. And he has retired. But he is obviously an incredibly distinguished lawyer. He's also one of James Comey's closest friends. How much expense are we really talking about here? I mean, presumably there's more to this than just James Comey. bringing in his friend, no matter how ferocious a defender he might be. So in terms of the cost, I mean, obviously it varies a lot. And it's not impossible that if someone's a friend.

I mean, I've represented people for free, in certain investigations, assuming you're paying the sort of normal full freight charge. I mean, you're easily looking in the hundreds of thousands for a major firm. because it's not just Fitzgerald's time that is sitting next to him. That's something. I mean, it's the whole team. and the preparation, all the pretrial type research that goes on. So, I mean, you'd be getting out on the cheap in the hundreds. of thousands of dollars range, and it could easily go well over that. And again, just slightly unpacking what's going on here.

James Comey obviously, we know is a pretty wealthy guy. He was in private practice for a long time, a, you know, a private, you know, white shoe law firm. Right. This is a this is more about a message, isn't it, that it's not just call me that should fear that sort of thing, of having to spend hundreds of thousands of dollars and being shamed in public. But this is a message to loads of other people. Oh, absolutely. And you also see the message in the people that they got rid of at the U.S. Attorney's office that actually did the indictment.

It seemed like they couldn't find anyone to do it. The original U.S. attorney there, the top prosecutor in the Eastern District of Virginia, a guy. named Siebert, had evidently said, no, not enough evidence here. Just like you said. Not enough evidence for Letitia James to New York state attorney general. So he either resigned or got pressured to quit or was outright fired. And also, I think The Washington Post is reporting this morning they confirmed. that his number two, also ended up having to leave the Justice Department.

So then they had to look around for someone. and they came up with this, lawyer, Lindsay Halligan, zero experience, etc.. But the problem there is the career. people, people have had experience are saying this is a no go. There's not any evidence there. So the case starts out in an extremely weak, flawed kind of position. That just explain you've prosecuted many federal cases.

Right. What what is the bar. What what what if you're a career federal prosecutor, what is your duty. to do if when you prosecute a case, what's the first or what's the first step? Yeah, it's really interesting question here. because it's more than just the legal standard there. The legal standard theoretically just to get. the indictment is simply probable cause, which is, you know, pretty low. There's a joke about how get the grand jury to indict ham sandwich. That joke is because it's one sided.

The prosecutor goes in, there's no cross-examination. There's no opposing counsel. You just put on the case sometimes just one question to your agent. That's what makes it relatively easy, practically. And the legal standard as well. But before you do that, you need to first present to your supervisors. Typically in a prosecution memo, you lay out the pros and the cons. in a more serious, complicated case, particularly. if it's a case involving a very high profile, politically charged situation.

You want to run that up the chain, make sure everybody agrees with your assessments of that. And in your assessment of that, it's not even just the evidence. Again, the best evidence might be okay, sounds like a crime if we prove it. Instead, the Justice Department has a manual that guides U.S. attorneys. You have to be certain that at trial, you could prove it. beyond a reasonable doubt. So even though the legal stand for indictments, actually just because. the real standard you're working with is proving this beyond reasonable doubt,

then you say, yeah, I think we can do this at trial. Here's the evidence, here's why. So those are steps that you have to go through. And I'll add one more kind of twist in this tale, which is apparently they presented. not two but three charges to the grand jury. And the grand jury only returned two, meaning they did. something called a declination on one of them. I can't tell you how rare that is. Because you don't bring in charges. Oh, we'll just throw it up in the air and see what the grand jury does here.

and for them to decline in my 11 years a deal, J. I only saw one declination and the other piece to it, which I'm. not sure we covered as deeply in the piece I wrote, is the vote was also very weak. Right? You only you only need a majority and they barely got the majority on those two. Those two things would tell a prosecutor this is a very poor case. I had cases where we had the votes, but back at the office.

talking to the supervisor, they're saying, you know, you barely got the majority here. We either need to shore this up or is it a signal? It's just not a case worth bringing. So all those are very, very weak signals on this case. So normally I and this would be the subject of lots of discussions. They've got a weak case. But it looks here like. the discussion is not about the weak case. The discussion is about going after one of Trump's enemies. Because as you say, it seems that the career.

prosecutors who are professionals who like you, serve. regardless of the president they serve, regardless of who's holding the Senate. or who's holding the House, they are there to serve the Constitution. They've not they are not getting involved. Some of them have either fired. right and left or either left voluntarily or been fired. So this is now in the hands of people that are loyal to Trump, I think. Is that a fair summation of this case?

More than fair, because, also. another unusual step was Miss Halligan, as the New York attorney. apparently personally presented the case to the grand jury. And that's extremely unusual. You wouldn't have, like, the top person. I mean, they have a lot of things to do, but they're actually showing up. Presenting the case. She also went to court. When the indictment was returned to magistrate judge, she had some staff issues. when she was there, probably due to an experience and haste makes waste. But the whole point here is how come she was by herself?

Maybe she wanted to get the credit of personally being there, but there was nobody else with her. And there is a suggestion there. that she's having trouble finding the career people to do it. So that's highly unusual. And you see, you've seen that a lot in the Trump DOJ is top officials. actually showing up in court, to do the dirty work, the legwork. And that's very odd because usually they're too busy. They're better qualified people who are really up on the case. So it could be a sign that they're really having trouble finding it.

So just spell out what was the next steps in this case. James Comey has not yet appeared in court. So can you just explain how is he, when's it going to be in court, and what happens then? Yeah, the next step is something they call it an arraignment. And that's where he will show up in court. And I think that's coming up on the eighth or the ninth till October. And he'll be there with his lawyer or legal team. And it's a pretty straightforward process where the judge is. simply letting him know he has these charges.

His lawyer will typically waive a reading of the indictment, meaning. we don't want to have the whole thing read to the world at this point. I mean, this fine, there is an indictment and then he'll plead not guilty. Everybody pleads not guilty the first time up. And then they'll set some schedules which are important for pretrial motions. Maybe they'll pick a trial date, but definitely. it'll be a schedule for pretrial motions. And this particular court, where they are in the Eastern District of Virginia, is nicknamed the rocket docket because they move very quickly.

So I would watch for the judge to have them on a very tight timetable. We might even see a motion filed before then to seek to dismiss the case. But we're going to start to see a big flurry of the legal motions. going back and forth. Now. Now, when, when normally when these are filed, it's up to the judge. But this case may well go elsewhere. Right. This this is a case that raises a whole load of questions potentially.

Is it potentially possible for this to end up in front of the Supreme Court. in some shape or form? It's potentially possible. It would be really unusual for the criminal case at this stage to get there. I mean, generally speaking, you need something called a final determination. The case. It's got to be something dispositive in the case that's happened, for it to be appealed. If, for example, there's a very, nouveau type of argument made of immunity, as you saw in Trump's cases,

then it might start to work its way up, because the point would be. we can't even get further in the case until we decide this here. The main argument coming is people are probably going to make is selective. prosecution, meaning he was picked out because he opposes Trump. Probably not going to go all the way to the court. Usually that would be heard at the district court level. The trial judge and the judge rules one way or the other, and it's probably not going to keep going at this point.

Later, it could be appealed. And I think you saw an example of that with the Hunter Biden situation. We argue selective prosecution, but it would be very rare to the stop. the criminal cases tracks and take it. all the way up to the High Court before you can finish the case. Now, you wrote in, in your piece, which was a brilliant exposition. of this case about selective prosecution. And you pointed out it's really it's not something that often gets raised. And even when it gets raised, it's not very likely to be successful.

But this again seems a bit different. Yeah, those are very hard cases to prove. I can't tell you how many clients I've had that say, I want this to be argued, a selective prosecution. It's really hard standard to me, because the reason it's really hard. practically, is you have to show the malicious intent there. You have to somehow have proof that the prosecutors and say, oh, we're going to pick you and other people. We usually don't pick them for the same kind of crime.

And there has to be some idea that, it's a little bit different. than vindictive prosecution, which is where you've raised some argument. and they're making it worse for you. Selective really goes to why they picked you. So you can imagine that prosecutors are not going to write down in their notes. or emails to each other, we're going to get this guy, we're going to pick up this. Really? I'm like, I'm not going to say that. But that's not true here because you have tons of statements, from President Trump, from his white House officials.

literally prejudging the case, saying, what a terrible guy this is. He's a criminal. We got to get him telling Pam Bondi, the attorney general, I'd say it's. you got to get this guy. What's the delay? Yeah. That's what makes this such an unusually strong case. for selective prosecution is you have all these public statements, for them to go with, and that's, really kind of unheard of. It's also good news for arguing there's terrible pretrial publicity. that could prejudice the case as well, given who's talking about it.

Now, let's just explain pretrial publicity. Right. We are talking about this trial, this or this case. It's getting publicity, right? There's there's no reason not to. There's nothing wrong with that. The First Amendment allows that. But why? What's what? What's wrong with or. who is it that is forbidden from giving pretrial publicity? Who's right, who should not be talking about. It's. Anyone who can strongly influence the court of public opinion.

And and here's what I mean by that. There's nothing wrong with publicity. And the key term. in judging a fairness or something in legal cases is the word prejudicial. A lot of people will say that certain evidence shouldn't come in as prejudicial. Well, of course it's prejudicial because it helps one side or the other. But it's got to be wrongly prejudicial. It can't be just that. I don't like it. So here people, judges will sometimes say gag orders. still tell the prosecutors, I don't want to have you giving. a press conference on the courthouse steps.

Same thing with the defense counsel. And if it's a very notorious case, you're in a small town. There's been a murder. Everyone's talking about it. And the defense counsel might say, we gotta move this someplace else. And this whole community is abuzz with this. We can't get a fair trial here. Here. You have to move it. I don't know some other universe, because there's no way to find the place where people haven't heard about it. And the problems here. What do you. Need to find the place that has not heard of Donald Trump? That's exactly. Right. Okay.

And we found that place. We can be sure that Trump would immediately fix that for us. I think some people might be moving there. If you if you find it, I think, you know, we could we could set up there be you know, it wouldn't be colonize Mars. I think there'd be an exodus. But that's right. Yeah, that would work. But that universe doesn't exist. So Donald Trump, all the times that he's called. James, called me deranged and crooked and a liar. This is all going to be thrown into the court cases.

What you what you you would expect. Exactly. Because the argument will be this kind of statement from like. the world's biggest bully pulpit is going to taint all of the jury pool. And it kind of works both ways, too. I mean, you can certainly look at that. People say, I can't stand, you know, the president's remarks. I can't stand him. I don't care if it is the OJ. I'm voting against them. So it works to both sides. But the defense is going to say. these kinds of remarks telling everybody they're prejudging the case.

He's a terrible human being. that makes it impossible to get a fair trial any place on the planet, really. And that's the argument. that that's going to be made not as strong as the selective prosecution case, because, as you're pointing out, of course, there's publicity in this case. And the judge will say, well, we can take care of that, and jury selection will ask a lot of questions, trying to really ferret out the prejudices here. But it's definitely going to be a big issue. So let's just game plan a bit and let's imagine that this trial. is going to take place, which, you know, as you say, not 100% guaranteed, right.

When the trial begins, one of the things that people. might be slightly surprised, in fact, Donald Trump might be surprised by. It's not going to be on camera. Federal courts are always held. I was going to say behind closed doors. That's not fair. You can go and watch it, but it's not going to be visible to the outside world. And then it's going to be is it is it going to be.

is it going to sound pretty technical because before James Comey is charged with. is that he didn't tell the truth to Congress, and that then goes to what he told Congress back in 2017 and also has it. So it's very hard to unpack. How can how can we don't see how we can make it. accessible to jurors. and also pleasing to Donald Trump, who is, after all, the audience here?

Yeah, that's a tall order. For a it's not just an impossible mission. Yeah, I think that's pretty tough for the to do. I mean, in terms of surprises to watch for. Yeah, most people don't realize that the federal courts, thanks to the Supreme Court, this is one of my favorite things to brag about. They have this ridiculously antiquated, dated notion that we can't have cameras. in the courtroom. It'll make people grandstand and play the cameras. So no federal courthouse has allowed cameras. And there's some exceptions. They have had some trial programs for it.

So this one will be in the dark with it. Don't have the old fashioned runners. They're coming right out of the courtroom to hit the cell phones, because you can't have cell phones in there either. I was going to say that I myself, as a reporter, been the victim. of having to run to a federal court, get my cell phone out of the locker, and then frantically try to work out, you know, can I find that? Can you get a signal? And, you know, it's nothing works properly. And the Wi-Fi is down and it's, you know,

it seems like a remarkably old fashioned system, for something that is so, you know, it's so high profile. Oh, yeah. Absolutely. And it's like we're back in the 1940s and 50. Some reporters running out there. And then the opening statements won't be that dry. I mean, both sides are going to distill it down to. just telling them a common sense story, like we're describing what the case is. when you get to the actual presentation documents, the testimony.

that may get pretty dry, particularly because, as you're pointing out, this isn't the most intuitive kind of case for people. I mean, certainly the prosecution will say this is a case about lying to Congress. The other side will say, no, he didn't lie to Congress. That's about the simplest moment for it, because when you dive into what is it that he was lying about, frankly, at the moment, even that's kind of confusing. Just reading the indictment, it seemed like they're basing it. on some questions that Senator Ted Cruz asked him, which Cruz seem to be talking.

about his conversations with his former former deputy, Andy McCabe. And it's centered on the question, did you ever leak anything to the media? Did you authorize anyone to the FBI to leak? And Cruz set it up as McCabe said, yes, call me. Did that and call me say, no, I didn't. When you actually look at McCabe's testimony, not really so clear that. those statements are opposed to each other because McCabe was saying. that he, McCabe was the leaker and he told Comey about it after the fact.

So that really wouldn't mean that. McCabe saying Comey leaked and he knew about it beforehand. So that really undermines that aspect of the lying to Congress. But to make matters worse, there's not reporting that that's not even the conversation Cruz was talking about. It's not with McCabe. It was with a friend of Comey's. who at some point told me, I think even his biography said he'd kind of. told that friend to leak some stuff to the media,

and it wasn't clear if at that time the friend was even employed. by the FBI, and they were employed in some capacity at some point. But that timeline is kind of fuzzy. It'll be cleared up by the time the trial, but that's the kind of confusion that's going to have to be unraveled. And a good defense counsel that I'm sure that the job will take care. of, this is going to completely muddy those waters. It's going to make it super confusing. Comey didn't know which person you were talking about. You didn't know which conversation you're talking about. So that aspect is going to get pretty dry at times.

And more importantly, pretty confusing for the jury. And could we see Senator Ted Cruz called in as a witness? You've just you know, you've raised the possibility. Many people, I'm sure, would be engaged to see that. Yeah, that could be possible. After all, he's the one in the conversation with him. Really, you kind of don't need them. because the testimony speaks for itself and under oath. But that would certainly be fun. And fireworks at Fitzgerald. I would definitely be chomping at the bit of Cruz subpoenaed.

And I'm sure Ted Cruz would be delighted, right, of yet more movement, although no cameras, so might not work out for him. Good point. I'm regardless of people talking a bit about this. at the beginning, but regardless of the outcome, here, this is this is not normal, right? No FBI director. has been the personal target. of a presidential demand for prosecution, and we've never really seen a president in our lifetimes anyway.

And, you know, historically, it it's not a thing presents demanding. direct prosecutions and certainly not of what appears to be personal enemies. It's our justice system up to dealing with this. Ascension is up to dealing with it. And, you know, it's not just the FBI directors. I mean, it's a constant calling out from the executive branch. who should be prosecuted. And Trump likes to keep referring to himself as he's.

the chief law enforcement officer, which I suppose technically, in some ways you could make that case, but no other president tries to see themselves that way. They're usually satisfied with being merely. the commander in chief, not also the top cop as well. The system is set up with some guardrails here. Some of them have failed already. The first point would be that the Justice Department would think twice. Its way. The evidence, they don't seem to be doing that. Second would be the career prosecutors doing the same thing.

They don't seem to be doing that or they've been fired. Because they will do that. So now it is up to the adversarial system. where you have defense counsel and people still have a right to a lawyer here. And that's one guardrail. They'll mount a defense, and then you have the judiciary. What are they going to do? The judge will consider it. And certainly the trial court judges seem fine to take care of that. That's what they do all the time. You seen in a lot of the noncriminal areas,

all these policy fights about the legality of Trump's policies. Trenton seems to be you win at the trial courts. Sometimes you win at the Court of appeals. It's when you get to Supreme Court and you tend to be losing all the time. So pretty good guardrails at the trial court level. And then the question will become what the appeal is. But in the criminal case trial court really counts a lot. They're overseeing the case through the jury verdict. And if there is an acquittal, meaning the defendant isn't.

found guilty, there is no appeal for the prosecution. If he's found guilty, the defendant can keep appealing. But if there's an acquittal at the trial level, that's the end of the story. So that is a big advantage here for the strength of that guardrail there. We should say that Trump has already been complaining about the judge in this case. Right. Because he's a Biden appointee. But just to clear that up. Many people. probably wonder, how does how does a judge get picked?

These are random picks. They literally have. the equivalent of a lottery will and whoever gets picked out of it. So there really is not a sense of particular judges being assigned to it. That's also true at the Court of Appeals level. when they have the panels of judges hearing it. But that's also a random assignment. There's more room for ideology at the Court of Appeals. They're writing opinions, interpreting precedent, a little less room for that. At the trial court level, where really we talk.

about judges as either being pro defense, meaning they tend to lean over backwards. to give the government a hard time protecting defendants or pro prosecution. Well, they tend to give the prosecution a lot of deference. You very rarely hear at the trial level, lawyers complaining. This judge and the Democrat or Republican, you know, that ideology is affecting it. is really more. just whether they're pro defense or pro prosecution in the criminal arena. That's pretty hopeful. But I just point out. when you add in your column, which again, I urge people to read,

you said. even the price of bringing the case is too much for our country. You just say it's spelled out for people because you've offered up. a positive review, as it were, of the judicial system. and the judiciary and ultimately the common sense of a jury. But this is not without price. The price is. that the federal prosecution system,

which is embodied in the Justice Department, is really broken right now. I mean, this president has succeeded in wiping out the leadership's ability. to do anything. He's just taken away leaders who might stand up to him, and he is managed. At this point, one can safely say that the DOJ. really functions as his personal attorneys. He's got some of this person already serving in the top positions, and they do what he wants to do. And that is a terrible situation for the country.

It's completely against the concept of an impartial justice system. And one thing I pointed out in the column was we make a lot of comparisons. to the Nixon administration for for good reason. But they're also huge differences. And one difference there is in the leadership. of the Justice Department and their conscience, because when Nixon. tried to get his attorney general to fire the Watergate special prosecutor, who was the bane of his existence, the AG then refused and quit.

Then he went to the deputy attorney general, the number two person. who also refused him quit. That's known as the Saturday Night massacre that's happening. That could have happened like every day in Trump Justice Department. And to some extent, you're seeing that there are lots of resignations. happening, people leaving the department, people being fired. And that's sort of like a massacre of the criminal justice system right now. at the federal level. That is terribly damaging. It's bad for the not only real justice, but people's perception.

of the department, their trust in the criminal justice system. That's all going down the tubes right now. That's going to take a long time to repair. We're not even begun the process of that repair yet. So there might be people out in the wider world. who say, well, you know, James Comey, Hillary's emails. I don't really like, you know, he messed around. with Trump or, well, you know, but this, you know, Trump's got his enemies, but they're not me.

That is that is that it's not enough. I mean or why should why should a normal person who's just, you know, walking down, walking down a street, living a normal life, going, getting their cappuccino in the morning, why should they be worried about what can seem like a very abstract. and far away, exercise of rival powerful people? Yeah, it's completely understandable. People think of that in that very removed fashion.

And I think it's really important to try to shine a light on that, to point out. that the test of justice in a society, is usually we often talk about how you treat the most vulnerable. So in the criminal justice system, people don't have resources. They may be minorities, low income. How are they treated? Really tells you how fair the system is. But equally important is how does the system. treat people who are unpopular, people accused of really heinous crime?

Are they given fair treatment? People who are disliked or controversial? Are they given for a treatment? And the reason that's important is because all of us. have experienced moments where somebody doesn't like us. That can happen. Schoolyard bullies, whatever it is, the test here is if that bully. was in charge of deciding your fate in terms of charging with the crime, how would you want to be treated? What protections would you want? That's why it's important the matter how you feel about Comey or anybody else,

you have to be concerned if they have no rights, just because. a person in power doesn't like them, that can easily happen to any of us. I just want to finish on a hopeful note, though, Sean, you think that the justice system can survive. and be brought back from this? I think it can be. I mean, you'll need obviously a change in administration, wholesale. change, at the Justice Department. But right now, that particular piece of the foundation, the integrity.

of the federal Justice Department that's broken, it's just not working. So it's completely dependent kind of on the judiciary right now. And that's not the way it's supposed to work. I think it can be brought back. I mean, we're only talking now. Four years here. It can't be changed. But what can't be changed? Who is all the damage that's done? Not just to the institution, but to actual people? The lack of proper prosecution priorities,

the injustices that's damaged that you can't really repair. Sean, we can only hope that. somebody of your integrity is currently inside the justice system. Well, you are inside the justice system, but inside the federal right, the federal system, that we can only hope that people of your integrity. are there to catch, catch up and make it whole again. Thank you for joining us. Thank you for the brilliant insights. And, we look forward to having you back soon.

Although we do not look forward. to having more bad news about the justice system, I should say, but I think we are probably going to have lots of reasons to speak to you. In the near future. Trump has promised more prosecutions and, there's bound to be much to talk about in those two. Sean, thank you for joining us. Oh, thanks for having me. Good to see you. Thank you to everyone who has watched and listened. If you enjoyed this podcast, drop us a like, subscribe,

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