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ALEXANDRIA, VA — This morning’s hearing on James Comey’s motion to dismiss charges for vindictive and selective prosecution was largely overshadowed by the revelation that the indictment may not be valid because it was botched by Acting U.S. Attorney Lindsey Halligan. You can read my initial court report here.
This would be an epic way to end the military prosecution of Comey: the Trump loyalist, with no prosecutorial experience, manipulates the basic nuts and bolts of grand jury practice so poorly that no indictment was ever attached to Comey.
But a botched indictment only indirectly gets to the heart of the bad faith and bad motives that motivate the Comey prosecution. So let’s review some of the highlights from the nearly hour-long discussion that preceded U.S. District Judge Michael Nachmanoff demanding answers from prosecutors about 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 focus on what interested the judge most and what his questions were most focused on.
Is the general animosity towards Trump enough?
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Nachmanhoff pushed both sides to respond to Trump’s comments he made to reporters the day after he posted his infamous social media message to Attorney General Pam Bondi demanding that she pursue charges against Comey, James and Sen. Adam Schiff. Noting that James had cited these remarks in his memoir and that Comey had not, Nachmanoff read most of them aloud:
“No, I just want people to take action,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I’ve been indicted twice. I’ve been indicted five times. It turned out to be a false case. And we have to act fast! One way or another. One way or another. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they’re guilty, or if they have to be charged, they have to be charged. And we have to do it now.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Nachmanhoff pushed both sides to respond to Trump’s comments he made to reporters the day after he posted his infamous social media message to Attorney General Pam Bondi demanding that she pursue charges against Comey, James and Sen. Adam Schiff. Noting that James had cited these remarks in his memoir and that Comey had not, Nachmanoff read most of them aloud:
“No, I just want people to take action,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I’ve been indicted twice. I’ve been indicted five times. It turned out to be a false case. And we have to act fast! One way or another. One way or another. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they’re guilty, or if they have to be charged, they have to be charged. And we have to do it now.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
For his part, Dreeben seemed wary of the potential absence of a refusal note, I suppose because it would be better for his case if the chief prosecutors had recently recommended in writing not to pursue the charges, as they did in the James case, and Halligan ignored them. But the judge seemed to be coming to a different point, which he elaborated on later in the hearing.
If Halligan had been appointed Acting U.S. Attorney on September 22 and brought Comey’s case to the grand jury on September 25, then “what independent assessment could she have made in that time frame?” » asked the judge. The existence, or lack thereof, of denial and prosecution notes would help determine whether Halligan truly exercised independent judgment. Lemons said it was a question whether the judge would order a discovery phase on the vindictive indictment request.
What about those Trump remarks you didn’t cite?
Nachmanhoff pushed both sides to respond to Trump’s comments he made to reporters the day after he posted his infamous social media message to Attorney General Pam Bondi demanding that she pursue charges against Comey, James and Sen. Adam Schiff. Noting that James had cited these remarks in his memoir and that Comey had not, Nachmanoff read most of them aloud:
“No, I just want people to take action,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I’ve been indicted twice. I’ve been indicted five times. It turned out to be a false case. And we have to act fast! One way or another. One way or another. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they’re guilty, or if they have to be charged, they have to be charged. And we have to do it now.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Lemons revealed that he did not have permission from Assistant Attorney General Todd Blanche’s office to answer the question on the grounds that it was privileged work product. All he said was that there had been numerous internal discussions and a “draft memo”.
For his part, Dreeben seemed wary of the potential absence of a refusal note, I suppose because it would be better for his case if the chief prosecutors had recently recommended in writing not to pursue the charges, as they did in the James case, and Halligan ignored them. But the judge seemed to be coming to a different point, which he elaborated on later in the hearing.
If Halligan had been appointed Acting U.S. Attorney on September 22 and brought Comey’s case to the grand jury on September 25, then “what independent assessment could she have made in that time frame?” » asked the judge. The existence, or lack thereof, of denial and prosecution notes would help determine whether Halligan truly exercised independent judgment. Lemons said it was a question whether the judge would order a discovery phase on the vindictive indictment request.
What about those Trump remarks you didn’t cite?
Nachmanhoff pushed both sides to respond to Trump’s comments he made to reporters the day after he posted his infamous social media message to Attorney General Pam Bondi demanding that she pursue charges against Comey, James and Sen. Adam Schiff. Noting that James had cited these remarks in his memoir and that Comey had not, Nachmanoff read most of them aloud:
“No, I just want people to take action,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I’ve been indicted twice. I’ve been indicted five times. It turned out to be a false case. And we have to act fast! One way or another. One way or another. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they’re guilty, or if they have to be charged, they have to be charged. And we have to do it now.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Nachmanoff, incredulous that an attorney handling the case couldn’t answer whether there had been a denial note, peppered Lemons with questions: Didn’t you check to see if there was a denial note? Have you looked for a declination memo? Did you investigate whether a charging memo had been prepared? Has anyone asked you not to respond?
Lemons revealed that he did not have permission from Assistant Attorney General Todd Blanche’s office to answer the question on the grounds that it was privileged work product. All he said was that there had been numerous internal discussions and a “draft memo”.
For his part, Dreeben seemed wary of the potential absence of a refusal note, I suppose because it would be better for his case if the chief prosecutors had recently recommended in writing not to pursue the charges, as they did in the James case, and Halligan ignored them. But the judge seemed to be coming to a different point, which he elaborated on later in the hearing.
If Halligan had been appointed Acting U.S. Attorney on September 22 and brought Comey’s case to the grand jury on September 25, then “what independent assessment could she have made in that time frame?” » asked the judge. The existence, or lack thereof, of denial and prosecution notes would help determine whether Halligan truly exercised independent judgment. Lemons said it was a question whether the judge would order a discovery phase on the vindictive indictment request.
What about those Trump remarks you didn’t cite?
Nachmanhoff pushed both sides to respond to Trump’s comments he made to reporters the day after he posted his infamous social media message to Attorney General Pam Bondi demanding that she pursue charges against Comey, James and Sen. Adam Schiff. Noting that James had cited these remarks in his memoir and that Comey had not, Nachmanoff read most of them aloud:
“No, I just want people to take action,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I’ve been indicted twice. I’ve been indicted five times. It turned out to be a false case. And we have to act fast! One way or another. One way or another. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they’re guilty, or if they have to be charged, they have to be charged. And we have to do it now.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Nachmanoff wanted to know from both sides whether the Justice Department had issued a memorandum of denial — a written explanation for why Comey should not be charged — as 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, saying he didn’t have permission from top DOJ officials.
Nachmanoff, incredulous that an attorney handling the case couldn’t answer whether there had been a denial note, peppered Lemons with questions: Didn’t you check to see if there was a denial note? Have you looked for a declination memo? Did you investigate whether a charging memo had been prepared? Has anyone asked you not to respond?
Lemons revealed that he did not have permission from Assistant Attorney General Todd Blanche’s office to answer the question on the grounds that it was privileged work product. All he said was that there had been numerous internal discussions and a “draft memo”.
For his part, Dreeben seemed wary of the potential absence of a refusal note, I suppose because it would be better for his case if the chief prosecutors had recently recommended in writing not to pursue the charges, as they did in the James case, and Halligan ignored them. But the judge seemed to be coming to a different point, which he elaborated on later in the hearing.
If Halligan had been appointed Acting U.S. Attorney on September 22 and brought Comey’s case to the grand jury on September 25, then “what independent assessment could she have made in that time frame?” » asked the judge. The existence, or lack thereof, of denial and prosecution notes would help determine whether Halligan truly exercised independent judgment. Lemons said it was a question whether the judge would order a discovery phase on the vindictive indictment request.
What about those Trump remarks you didn’t cite?
Nachmanhoff pushed both sides to respond to Trump’s comments he made to reporters the day after he posted his infamous social media message to Attorney General Pam Bondi demanding that she pursue charges against Comey, James and Sen. Adam Schiff. Noting that James had cited these remarks in his memoir and that Comey had not, Nachmanoff read most of them aloud:
“No, I just want people to take action,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I’ve been indicted twice. I’ve been indicted five times. It turned out to be a false case. And we have to act fast! One way or another. One way or another. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they’re guilty, or if they have to be charged, they have to be charged. And we have to do it now.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
Nachmanoff wanted to know from both sides whether the Justice Department had issued a memorandum of denial — a written explanation for why Comey should not be charged — as 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, saying he didn’t have permission from top DOJ officials.
Nachmanoff, incredulous that an attorney handling the case couldn’t answer whether there had been a denial note, peppered Lemons with questions: Didn’t you check to see if there was a denial note? Have you looked for a declination memo? Did you investigate whether a charging memo had been prepared? Has anyone asked you not to respond?
Lemons revealed that he did not have permission from Assistant Attorney General Todd Blanche’s office to answer the question on the grounds that it was privileged work product. All he said was that there had been numerous internal discussions and a “draft memo”.
For his part, Dreeben seemed wary of the potential absence of a refusal note, I suppose because it would be better for his case if the chief prosecutors had recently recommended in writing not to pursue the charges, as they did in the James case, and Halligan ignored them. But the judge seemed to be coming to a different point, which he elaborated on later in the hearing.
If Halligan had been appointed Acting U.S. Attorney on September 22 and brought Comey’s case to the grand jury on September 25, then “what independent assessment could she have made in that time frame?” » asked the judge. The existence, or lack thereof, of denial and prosecution notes would help determine whether Halligan truly exercised independent judgment. Lemons said it was a question whether the judge would order a discovery phase on the vindictive indictment request.
What about those Trump remarks you didn’t cite?
Nachmanhoff pushed both sides to respond to Trump’s comments he made to reporters the day after he posted his infamous social media message to Attorney General Pam Bondi demanding that she pursue charges against Comey, James and Sen. Adam Schiff. Noting that James had cited these remarks in his memoir and that Comey had not, Nachmanoff read most of them aloud:
“No, I just want people to take action,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I’ve been indicted twice. I’ve been indicted five times. It turned out to be a false case. And we have to act fast! One way or another. One way or another. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they’re guilty, or if they have to be charged, they have to be charged. And we have to do it now.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
The judge wanted to know whether the vindictive motive for the prosecution had to be retaliation for the exercise of a constitutional right — in Comey’s case, his First Amendment right to freely criticize Trump — or whether a claim of vindictive prosecution could be sustained if the retaliation was based simply on general animus toward the accused. Comey’s position was that both were viable and, ultimately, when questioned by Nachmanoff, Lemons agreed. This opens the door for Nachmanoff to consider all sorts of Trump invective aimed at Comey. Dreeben seized on this concession, arguing that the basic legal framework was not in dispute.
Was there a declination memo from the DOJ?
Nachmanoff wanted to know from both sides whether the Justice Department had issued a memorandum of denial — a written explanation for why Comey should not be charged — as 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, saying he didn’t have permission from top DOJ officials.
Nachmanoff, incredulous that an attorney handling the case couldn’t answer whether there had been a denial note, peppered Lemons with questions: Didn’t you check to see if there was a denial note? Have you looked for a declination memo? Did you investigate whether a charging memo had been prepared? Has anyone asked you not to respond?
Lemons revealed that he did not have permission from Assistant Attorney General Todd Blanche’s office to answer the question on the grounds that it was privileged work product. All he said was that there had been numerous internal discussions and a “draft memo”.
For his part, Dreeben seemed wary of the potential absence of a refusal note, I suppose because it would be better for his case if the chief prosecutors had recently recommended in writing not to pursue the charges, as they did in the James case, and Halligan ignored them. But the judge seemed to be coming to a different point, which he elaborated on later in the hearing.
If Halligan had been appointed Acting U.S. Attorney on September 22 and brought Comey’s case to the grand jury on September 25, then “what independent assessment could she have made in that time frame?” » asked the judge. The existence, or lack thereof, of denial and prosecution notes would help determine whether Halligan truly exercised independent judgment. Lemons said it was a question whether the judge would order a discovery phase on the vindictive indictment request.
What about those Trump remarks you didn’t cite?
Nachmanhoff pushed both sides to respond to Trump’s comments he made to reporters the day after he posted his infamous social media message to Attorney General Pam Bondi demanding that she pursue charges against Comey, James and Sen. Adam Schiff. Noting that James had cited these remarks in his memoir and that Comey had not, Nachmanoff read most of them aloud:
“No, I just want people to take action,” Trump said. “They have to act and we want to act fast. You know, they were ruthless and vicious. I’ve been indicted twice. I’ve been indicted five times. It turned out to be a false case. And we have to act fast! One way or another. One way or another. They’re guilty, they’re not guilty, we have to act fast. If they’re not guilty, that’s fine. If they’re guilty, or if they have to be charged, they have to be charged. And we have to do it now.
Dreeben seemed concerned that the judge was treating these remarks as a flashback to the social media post, but later, when Nachmanoff pressed Lemons’ same remarks, it became clear that the judge viewed them as particularly damning evidence against the government.
At one point, when Lemons argued that Comey’s vindictive prosecution was based entirely on anonymous sources, reporting and conjecture, the judge set him aside.
“You’re not saying those aren’t the president’s words?” asked Nachmanoff, quoting the quote above. The lemons retreat hastily.
Moments later, the judge again brought up Trump’s remarks about “acting fast” and “guilty or not guilty,” asking Lemons: “How is this consistent with your practice when you decide to take a case to the grand jury?” »
Then, still focused on Trump’s remarks that Comey had not cited, Nachmanoff interrupted Lemons to ask his most pointed question about seeking vindictive prosecutions: How is it consistent with the justice playbook that you only prosecute if you believe the defendant will be found guilty beyond a reasonable doubt and the conviction will be upheld on appeal?
Lemon backed away, saying that even if Trump had improper motives, Comey had to prove that Halligan had improper motives in his own mind. At that point, the judge put Comey’s arguments in his favor, telling Lemons that Comey’s argument is that Trump gave the order to continue the social media post and reiterated it in follow-up remarks.
At this point in the hearing, Nachmanoff seemed convinced that the bar had been passed for vindictive prosecutions to succeed.
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