Editor’s note: After we recorded this episode, James Comey was indeed indicted, and The New York Times published additional details that expand on the reporting discussed below and reveal the prosecution as still more corrupt. Only Trump’s handpicked adviser signed on to the indictment, and career prosecutors thought the case was far too weak to justify going forward.
President Trump’s lawlessness has just taken another turn for the worse. It’s being widely reported that Trump’s Justice Department is likely to indict former FBI Director James Comey, someone the president has hated for years. Yet this comes after career prosecutors reportedly informed DOJ political appointees that they have not been able to find evidence that would sustain a conviction. This comes as Trump unleashed a really corrupt tirade about James Comey and a second strange rant about right-wing political violence that seemed to again absolve his own side. And we also just learned that DOJ is looking for ways to launch a criminal investigation of billionaire Democratic donor George Soros. How should Democrats and liberals in the media talk about this level of lawlessness? Is our current language adequate? Talking Points Memo editor-at-large David Kurtz has a great new piece arguing that it is not—that Trump’s unparalleled destruction of the rule of law requires a whole new language to adequately describe what’s really happening here. So we’re talking to David about all this. Good to have you on, man.
Sargent: So the latest we have on James Comey is that DOJ is racing to find a way to indict him by next week for lying to Congress in connection with the Russia investigation, I guess. By the time listeners hear this, there may even be an indictment. Yet this comes even as the New York Times reports that career prosecutors investigated Comey and found insufficient evidence to obtain a conviction. David, can you bring us up to date on all this?
Sargent: Well, Trump addressed this directly on Thursday. As you say, it’s been widely reported that Trump is directly pressuring DOJ for these prosecutions. Here’s what Trump said when asked by a reporter about the situation.
Sargent: So there it seems like Trump is angling for some sort of plausible deniability. He wants to avoid the obvious charge that Comey is the victim of selective prosecution. But funnily enough, Trump couldn’t even help but again, express his desire to see Comey prosecuted even during that tirade. Can Comey point to this selectiveness? What’s the significance of it?
In terms of what the implications are for the Comey prosecution, but I think judges see what’s happening. I think these kind of demonstrations make it clear that they’re going to have to put prosecutors to the test on all of these in a way they haven’t had to before, or wouldn’t even have had to think about putting them to the test before.
But I think there’s a real possibility that some of these are going to lead to convictions and they’re going to have been, you know, predicated in bad faith, investigated in bad faith. And they may still get them over the finish line just because of the amount of power and discretion that prosecutors have. And it’s historically used, for better or worse, with a fair degree of wisdom and professionalism and oversight compared to what we’re seeing now.
Kurtz: So I would say that there are fewer constraints than most people would believe or would hope. I would also say that there’s a rapidly evolving legal environment and some of these questions don’t have concrete answers yet. Structurally, from a constitutional standpoint, I don’t think that there is at least in the eyes of the Roberts court, anything that would prevent Trump from directly ordering his attorney general to seek an indictment of someone.
Now, that being said, we’ve seen grand juries stepping up and deciding that some cases that they brought, particularly in D.C. with the surge and police here with the riots in L.A., grand juries have set up like these are not appropriate charges. We’re not going to indict these and that’s forced DOJ to file misdemeanors versus felonies in some cases. You know, judges have expressed a great deal of skepticism in some of these cases about how DOJ has been handling.
Sargent: Yeah. Well, it looks to me like institutional actors are going to be the ones that have to step up. I want to go a bit broader here. Listen to this from Trump talking about political violence.
Sargent: It seems like Trump’s project is to create a two-tiered legal system in which he and his supporters are above the law entirely, and all his enemies, whoever gets designated that way at any time by Trump, are not just subject to the law. but subject to the corrupt application of it. In this kind of schema, the law is entirely instrumental, isn’t it? This goes to your piece, which was really, really good. I strongly recommend people read it. How do we report on this level of corruption of the rule of law? How do we talk about it?
I think we need to be really mindful that many of these cases wouldn’t have been brought in the first place, that we don’t really have any presumption anymore that what we’re hearing from DOJ, from law enforcement can be trusted, is reliable. And I think there was some presumption of that before.
And so if we use the same—this is what I argued in the piece—if we use the same journalistic tools, if we use the same coverage that we have for years in covering these things, all we’re going to do is reinforce that James Comey, or whoever the target is, is a bad actor, a villain. When in fact, what we really should be concerned about is the public corruption involved in abusing his office and abusing the office of the attorney general to bring cases that shouldn’t have been brought in the first place.
Sargent: Well, just applying your framework for a second to that audio we just heard in which Trump essentially absolved his own side of political violence. The story there should be that Donald Trump is explicitly declaring that his own supporters will be above the law as long as he controls the legal apparatus, correct?
Sargent: Yeah, and I think there’s actually a through line between the two elements you identified in that rant from Trump. And the through line is basically that he’s creating a system, a world in which there isn’t really such a thing as legitimate guilt and innocence, right? It’s just power all the way down. Everything is just a war and that’s it. Whoever wins wins and whoever loses loses. That’s what I think is happening here really.
Sargent: Intimidate as well.
Sargent: Really want to pick up on what you just said there, because it’s absolutely essential. I have spoken to members of civil society, liberal advocacy groups and so forth. Look, let’s just face facts. All this stuff absolutely will chill political activity on the liberal side. Lots and lots of actors in the system are going to have to ask themselves whether they want to risk coming under the kind of crosshairs of prosecution from Donald Trump and Ed Martin and the whole weaponization crew. That is just a fact of life right now in American politics that we just, you we can’t deny.
And there is, I think, a sort of a cascading effect. People get worn down. And over time, more and more people retreat and it becomes harder and harder to sustain a civil discourse, a civil engagement when people just don’t want to be involved at all for legit reasons, right? For personal legit reasons.
Congressman Eric Swalwell: What I would just say to any prosecutor at the Department of Justice is it’s not going away. As a member of the Judiciary Committee, I promise you when Democrats are in the majority, we are going to look at all of this. And there will be accountability. And bar licenses will be at stake in your local jurisdiction if you are corruptly indicting people where you cannot prove the case beyond a reasonable doubt.
Kurtz: So there’s a few, but I’m concerned that I will overstate their effectiveness just because I think people want so badly to believe that there can be consequences for this—that we’re hungry for it, right? So yes, I think if you end up with a new administration with a new DOJ that comes in and cleans house, that you have a number of professional things that can be done within DOJ, you have state bar associations or bar licensure processes, there’s discipline processes, there’s a whole range of those kinds of things, but look, I think we’ve already seen in the last 10 years that they’re slow, they’re not quickly responsive to the urgency of the moment, and that it doesn’t have the sort of structural impact that I think we’re looking for. So it’s not that there are no consequences to be had, but I think that they are harder to come by. And it would take more than just Democrats winning the House. It would take more than just winning Congress. I think you would need to win the White House for there to be a chance that some of this could ultimately be looked at as criminal or corrupt in its own right.
The kind of thing that you were talking about in the Comey case is, you know, career people being like, we don’t have... there’s just no evidence. We can’t bring this. You need those kind of people around. And if those people leave, it’s a tough spot to be in. So I think Swalwell was talking more to the politicals than he was to your line prosecutors. But it’s helpful for them to hear that they’re going to have the support. It’s almost like a hang on. Help is coming. I think realistically, help is still three, three and half years away at best. It’s a long time.
Kurtz: No, I mostly agree with that. And I don’t mean to suggest that it would make no difference if you had a Democratic House. I will just note that the level of oversight that Democrats provided in the first term was not as aggressive in any way, or form as what you’re describing. And I think that there were—you know, they hopefully learned the lesson that subpoenas can be ignored, that a lot of these legal fights will drag on for years, and that you have to find a way to both use those tools, find other tools to use, and wrap it all in a public sort of presentation and public pressure campaign that, as you say, keeps the heat on so that the politicals feel, if not accountability, at least, you know, some heat.
Sargent: Well, if there’s one thing that Trump 2.0 is really driving home, it’s that the old understanding of politics and the old understanding of tactical approaches to these situations has to be just chucked out the window. And a new understanding has to be brought into play. And I think you’re seeing the Democratic Party move that way with quotes like this from Eric Swalwell. It’s slow, but some of the younger people in the Democratic caucuses seem to get it. And I think look at Chris Murphy, for instance, the Senator from Connecticut. He’s been incredibly vocal on this stuff. I do think that the Democratic Party is starting to see that a fundamentally new approach to political warfare is needed here. Do you think that’s plausible?
Sargent: Democrats get with it man. Get moving! David Kurtz enormous pleasure to talk to you man. Great stuff.
Kurtz: Thanks as always Greg. Good being with you.
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